Column: Do 50 Shots Make A Civil Rights Crime? (New York Law Journal)

By Christopher Dunn — Last month’s incident in which New York City Police Department officers fired fifty shots at three unarmed African-American men outside a club in Queens, killing one of them and seriously injuring the other two, has sparked renewed debate here in New York City about excessive force and the role of race in police shootings. While a Queens grand jury will consider possible state criminal proceedings, the shooting death of Sean Bell also raises questions whether the United States Department of Justice should move forward with a federal civil rights prosecution.

Federal prosecutions of police officers are relatively rare, with perhaps the most notorious contemporary example being the successful prosecution of Los Angeles Police Department officers involved in the 1991 beating of Rodney King. Closer to home, federal prosecutions of NYPD officers have targeted those involved in the August 1997 assault of Abner Louima in the bathroom of a Brooklyn precinct house as well as the officer who in December 1994 killed Bronx resident Anthony Baez with a chokehold after an errant football hit the officer’s car. The most notable instance of federal prosecutors not pursuing charges against NYPD officers was with the four white members of the Department’s Street Crime Unit who fired forty-one shots and killed unarmed African immigrant Amadou Diallo in February 1999.

The paucity of federal civil rights prosecutions against NYPD officers in part reflects the demanding legal standards governing such cases. Any consideration of a federal prosecution arising out of the shooting death of Sean Bell must start with an understanding of those standards.

The Basics of Civil Rights Prosecutions

Federal civil-rights prosecutions in police misconduct cases are primarily based on a statute that dates back to the Civil War, when Congress enacted the Civil Rights Act of 1866. As amended and reenacted, the act’s section 2 is now codified at section 242 of Title 18 of the United States Code and provides as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; . . . and if death results from the acts committed in violation of this section or if such acts include . . . an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

The broad sweep of this statute — criminalizing violations of “any rights, privileges or immunities secured or protected by the Constitution or laws of the United States” — spawned the seminal 1945 Supreme Court case construing the statute. Screws v. United States arose out of “a shocking and revolting episode” in which police officers from Baker County, Georgia arrested a Robert Hall at his home for the alleged theft of a tire. As the Court explained,

Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three [officers] began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness.

The officers were convicted under section 242’s predecessor for violating Hall’s Fourteenth Amendment due process rights, including the right to a trial and to be punished as Georgia law prescribed. Though their appeal to the Supreme Court did not produce a majority opinion, five Justices agreed the statute was constitutional.

The issued presented was whether, by criminalizing violations of the Fourteenth Amendment’s due process clause, the statute was unconstitutionally vague. More precisely, in light of the wide-ranging body of case law defining due process, “[i]t is said that the Act must be read as if it contained those broad and fluid definitions of due process and that if it is so read it provides no ascertainable standard of guilt.” Given the undeniable lack of precise boundaries to due process protections and the well-established requirement of precision in criminal statutes, this was not an inconsequential argument.

With a less than pellucid analysis, the Court resolved the issue by focusing on the statutory requirement that those charged had “willfully” violated constitutional rights. According to the Court, concerns about the lack of specificity in the rights covered by the statute — such as those conferred by the due process clause — were remedied if the statute’s requirement of willful violations were read to provide that the statute was violated only when the defendant “had a specific intent to deprive a person of a federal right made definite by decision or other rule of law.”

This did not mean, however, that defendants could only be convicted if they were “thinking in constitutional terms.” Rather, the touchstone was whether the intent “was to deprive a citizen of a right and that right was protected by the Constitution.” That intent “need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act” including “the malice of the [officers], the weapons used in the assault, its character and duration, the provocation, if any, and the like.” In other words, if all the circumstances showed, for example, that an officer struck a person not to effect an arrest or some other legitimate purpose but instead for the specific purpose of injuring or killing the person, the officer could be prosecuted.

Turning to the beating death that prompted the prosecution before it, the Court explained that it was “plain” that the due process of law in a criminal case required a trial in a court of law, not a trial “by ordeal.” And in language that bears directly on police-shooting prosecutions, the Court explained,

Those who decide to take the law into their own hands and act as prosecutor, jury, judge and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him.

The Screws analysis, which frames police-officer prosecutions under section 242 to this day, yields several important points. First, federal civil rights prosecutions are not limited to situations in which officers are motivated by racial animus or other impermissible considerations; rather, the violation of any constitutional right may be a predicate for a federal prosecution. Indeed, prosecutions of police officers are more likely to involve Fourth Amendment excessive force claims than intentional race discrimination claims under the equal protection clause.

Second, a police officer’s mere violation of a constitutional right does not constitute a crime under section 242. Instead, the violation must be willful, by which the Supreme Court means it must be done with the specific intent to deprive the victim of a right protected by the Constitution, though the officer need not be thinking in terms of the specified legal right.

Finally, the requisite intent need not be proven expressly but can be inferred from the circumstances of the act. Those circumstances might include, for instance, the number of shots fired by an officer.

Prosecutions in Police-Shooting Cases

Before turning to the recent Queens shooting, it may be useful to review the application of Screws in a recent Court of Appeals decision involving a section 242 prosecution arising out of a police shooting incident that bears some parallels to the Queens incident. United States v. Bradley, a 1999 Seventh Circuit decision, presented facts that, according to the court, “read like something out of a ‘Dirty Harry’ movie.”

The defendant, Adolph Bradley, was a 72-year old police officer “out to clean up the streets of Brooklyn — Brooklyn, Illinois that is.” One night while patrolling in an unmarked police car and carrying a Smith & Wesson .357 magnum revolver loaded with hollow point bullets he observed a station wagon roll through a stop sign. Bradley and the officer driving the car activated their police lights, but the station wagon driver continued, being unsure whether the unmarked vehicle following him was a police vehicle. Bradley’s vehicle closed to within twelve feet of the station wagon, at which point Bradley suddenly drew his gun, leaned out the window of the moving patrol car, and fired a shot.

The station wagon continued on “in what had now become a low-speed chase.” Bradley then leaned out the window a second time, took aim at the station wagon driver, and fired a shot that penetrated the car and padding in the back of the driver’s seat; the driver was not hit only because a steel plate in the seat stopped the bullet.

Bradley was prosecuted under section 242, and a jury convicted him. On appeal the Seventh Circuit, after reviewing the standards spelled out in Screws, affirmed that conviction, notwithstanding Bradley’s claim that he thought the driver might have had a gun:

Although Bradley claims that he believed [the driver] may have been reaching for a gun, [the other officer in the car] contradicted this statement and testified that he observed no furtive gestures from the station wagon’s driver. Neither Bradley nor [the other officer] ever saw the driver of the station wagon brandish a weapon of any kind or do anything that could be reasonably perceived as life-threatening. Nevertheless, in an attempt to stop the station wagon’s flight, Bradley used deadly force by firing a gunshot into the station wagon . . . . The jury had ample evidence to reasonably conclude that Bradley willfully violated [the driver’s] Fourth Amendment right to be free from the use of excessive force during an arrest.

Issues Presented by the Sean Bell Shooting

Because the full facts surrounding the recent Queens shooting death have not been publicly disclosed, one cannot now draw conclusions about the propriety of a federal civil rights prosecution. However, some of the reported information may bear directly on the issue.

On the one hand, fifty shots were fired at three black men who were unarmed and apparently not engaged in any unlawful activity. One detective alone reportedly fired thirty-one shots — including fifteen shots after reloading his semi-automatic handgun — though police officials have stated that officers are trained to fire only three shots and then to reassess the situation. Finally, the officers may not have adequately identified themselves at the outset, leaving Mr. Bell and the others to believe they were being attacked by criminals.

On the other hand, the undercover officer who first attempted to stop Mr. Bell’s car may reasonably have believed a gun was in the car and may have communicated that to his fellow officers. Moreover, the other officers involved, including the one who fired thirty-one shots, may have believed the car’s driver was attempting to run over the undercover officer, leading them to believe his life was in danger. And all of the shots may been fired in a very short period of time, with the officers being confused about whether they were being shot at.

An officer who fired over thirty shots at an unarmed, law-abiding person could be guilty of willfully using excessive force and thereby depriving the person of his constitutional right to be free of excessive force. Conversely, the particular circumstances of that shooting might well demonstrate it falls short of this standard. Many will be interested to see what the Justice Department does in response to the Sean Bell shooting.