Willful misbehavior or tragic accident?

The Justice Department would have a tough time proving police deprived Diallo of his civil rights when they shot him, one expert says.

Published February 29, 2000 5:00PM (EST)

After an Albany jury acquitted four New York police officers on all counts in the killing of 22-year-old African immigrant Amadou Diallo last Friday, Diallo's family and supporters turned to the U.S. Justice Department, hoping a review of the case would lead federal officials to charge the men with violating Diallo's civil rights.

So far, critics of the police have come together around that demand, avoiding the explosion of racial enmity that led to rioting, looting and murder in Los Angeles the officers who beat motorist Rodney King were acquitted in 1992.

The Justice Department moved swiftly to look at the case. "We have been monitoring the trial," spokesman Myron Marlin said. "Now we will review the case to see what, if any, federal action is required."

It was once unusual for the Justice Department to pursue civil rights charges against police officers, but the number of prosecutions has increased under Janet Reno's tutelage -- a move not all that surprising, considering how much the King verdict undermined the trust of many Americans in the police and court system. According to data compiled by USA Today last year, the Justice Department convicted 756 law enforcement officers of corruption, police brutality and other charges during the past five years.

Among the most publicized civil rights cases brought against police were the 1998 conviction of NYPD officer Francis Livoti, who was convicted in the choke-hold killing of Anthony Baez, and the 1993 convictions of Sgt. Stacey Koon and Officer Laurence Powell of the Los Angeles Police Department for their role in the brutal King beating, the most indelible image of police misconduct of the 1990s.

But such cases are expensive, they require a preponderance of evidence of civil rights violations as well as serious doubts about the fairness of the jury -- all factors that seem, at least on the surface, absent from the Diallo verdict.

Salon spoke with Cornell University law professor Theodore Eisenberg, an expert in civil rights law, about the Justice Department's decision to review the Diallo acquittals, and whether there is a case to be built against the officers responsible for his death.

The Justice Department says it will investigate whether civil rights charges should be filed against the four officers. What does that investigation entail?

They would review all the available evidence, including the trial transcript and the investigative reports, to see if there's grounds for bringing a federal criminal prosecution against the officers under 18 USC, Section 242 -- a federal civil rights statute dating back to 1866, which criminalizes official behavior that deprives individuals of their constitutional rights.

What historical precedents exist for the DOJ to pursue civil rights charges against police officers?

Rodney King was an important one. The classic historic case would be in the South, in the 1930s or 1940s. When the sheriff misbehaves and murders a black prisoner in his custody and the state prosecutor would never think of indicting. If he did, a jury would never think of convicting. So, the only possibility for justice would be a federal prosecution, which would also have the obstacles of a jury that may be biased.

The statutes were drafted right after the Civil War, largely to control Southern vengeance against blacks. One could say in the Diallo case, whites shot a black man, therefore it's a racial case. But I'm not sure there's evidence to back that. You have to show some special willingness to shoot a black person. It may exist, but I don't know how you prove that in a single case. If these officers were presented with 10 whites and 10 blacks and shot 10 times against blacks and not against whites, then you'd have an easy case. You have to infer what they would have done had the fellow been white and drawn his wallet.

What would the Justice Department need to prove to build a case against the officers?

The major limitation in the statute is that it requires proof of "willful misbehavior" by the officers, and the Supreme Court in a case called Screwes vs. United States, announced that the "willful" requirement requires that the defendant have a specific intent to deprive the victim of a constitutional right. It's not enough, for example, to hurt someone or to murder someone. In doing so, you have to have had the intent to deprive them of a constitutional right.

Would the DOJ need to prove that the shooting was premeditated?

No, not in the sense that you planned it a week in advance or something. You have to ascribe a reasonably specific mental state in the midst of a lot of action. That's the major limitation on these prosecutions -- you can't just show wrongful behavior, you have to show a specific mental state.

Based on your own assessment of the trial of the officers responsible for Diallo killing, do you see a case for the DOJ here?

It's clear to people who have followed the case casually that this presents an extra level of difficulty for the Justice Department -- the only activity was the dispersal of bullets, which lasted only a few seconds. We don't have a sober, after the encounter, thorough beating of someone on tape. You don't have a smoking gun that says: Look, they were doing something quite wrong.

But "excessive force" by officers of the law is one of the provisions covered in federal civil rights legislation. How could anyone argue that the firing of 41 shots at an unarmed man isn't excessive force, and thus a civil rights violation?

With modern guns it's easy to fire a lot of bullets quickly. You pull the trigger, you hold it down and it keeps firing. In the old days, to fire 41 bullets, even with four people, might have taken a while. Whereas, now I'm sure there are guns that would shoot 41 bullets in a second.

What would prosecutors be looking for in a shooting case like this to prove "willful misbehavior?"

Suppose you thought this person -- Diallo, in this case -- had committed a crime. They could have thought, 'We're not going to wait for these lenient courts to try punish this guy; we're going to punish him now ... we'll skip the trial stage.' That would be a clear effort to deprive him of due process of law. Even if they knew he were guilty of a crime, they couldn't impose the punishment without due process of law. Or, if they could show that they did this because of race.

What level of charges and punishment could the officers face if the DOJ develops a case?

If death results, as in the Diallo case, the sentence can be for any term of years or for life.

If DOJ is unable to develop a case against the officers, could it pursue the New York Police Department with a federal civil enforcement? Could you take the Diallo and Abner Louima cases and establish a pattern of civil rights abuses by the department?

It's unlikely, unless you have a massive pattern. The Justice Department did do that to the Philadelphia police department. Remember [Philadelphia Mayor] Frank Rizzo? The Justice Department filed a complaint against the Philadelphia Police Department for systematic constitutional violations. But that would almost never be based on one or two incidents. That would be based on a substantial pattern or practice. Unless you could show that up the line, at some supervisory level, this type of behavior was being encouraged or approved. But inferring from two incidents in a city of 8 or 9 million people, with tens of thousands of police officers, doesn't rise to the level of a pattern or practice.

There were no eyewitnesses in the Diallo case other than the officers. Will that make it more difficult to prosecute than previous cases, like the trial of the officers involved in the Rodney King beating?

The King case had the video tape, which meant it was very hard for them not to prosecute because it looked pretty clear that something wrongful had happened. You don't have that here -- what you have is a jury that apparently believes their version, that we felt threatened and we fired. If that's what you think happened, it's very hard to infer a constitutional violation, even if they were unreasonable in thinking they were threatened.

Would it be considered double jeopardy for the DOJ to prosecute the officers after they were acquitted at the state level?

No. They were not prosecuted for violating the constitution or civil rights in state court. They were prosecuted on state murder, manslaughter and other homicide charges. But it's still a fair question, and that's one reason the department doesn't do this often. Even though they have the raw power in almost any case that involves police conduct to go in and make a federal civil rights prosecution, it comes close to the line of double jeopardy. As an internal matter, they are reluctant to do it -- since it's basically prosecuting the person for very similar behavior when they've already been acquitted the first time. Unless you have a real reason to think the process in the state courts was flawed, you might not go forward.

On Friday, Mayor Giuliani, who himself is a former federal prosecutor, told reporters, "Let's move this out of politics." He also said it would be inappropriate for the Justice Department to renew the case against the officers. "I know those rules like the back of my hand."

I think it's hard to say that reviewing the case is inappropriate. You don't know how much the Justice Department knows about the case. If there had been a conviction here, there would have been no call at all for a federal prosecution. Anyone would be within normal behavior to review the facts and decide whether to proceed.

The other side is that these are difficult convictions -- you have to prove a specific intent to violate constitutional rights. On a racial basis, this jury was not stacked. I remember reading somewhere that someone said this was the highest percentage of blacks anyone could remember on an Albany jury. Four out of 12 isn't bad, and this was a unanimous decision. If you had four jurors who believed it was racially motivated, you'd at least have a hung jury. If I'm the Justice Department, the fact that a jury that was one-third black saw fit not to convict, meaning they bought the policemen's version of the story, it's hard to infer a specific intent to violate constitutional rights.

By Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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