What is the proper professional punishment for a mistake that results in a person's death? A physician's fatal error, for example, can result in the withdrawal of hospital privileges and sometimes the revocation of the medical license, though seldom is either punishment imposed for a first offense. Is medical malpractice a good analogy for police malpractice? What should the punishment be for a police officer's fatal error?
Police Commissioner Bernard Kerik recently announced that the four officers acquitted by an upstate jury of all criminal charges in the killing of Amadou Diallo would be confined to desk jobs, but not punished further. (The 22-year-old unarmed West African street vendor was killed on the night of Feb. 4, 1999, while standing in front of what turned out to be his Bronx home.)
New Yorkers, according to the New York Daily News, do not agree with Kerik.
In a Daily News/New York 1 poll, respondents were told that the police department "has decided not to discipline the four officers involved in the shooting death of Amadou Diallo." When asked whether they approved or disapproved of the decision, only 21 percent approved, and 64 percent disapproved.
These overall figures mask a huge racial disparity: 89 percent of black New Yorkers disapproved of Kerik's decision, and only 2 percent approved. White New Yorkers, however, showed a different pattern: only 43 percent disapproved, 39 percent approved, and 18 percent were not sure.
The public's distress with the police department's handling of the shooting remains very high even as crime in the city has hit a record low. The police department announced on April 30 that murder, which had already been at the lowest level in three decades, had plunged another 18 percent, from 237 to 194, during the first four months of 2001. Both robbery and burglary were also down more than 16 percent.
Commissioner Kerik, quoted in the New York Post, credited police department initiatives for the crime drop, citing the department's focus on gangs, its high priority on warrants for violent felons (warrant arrests are up 50 percent), and the fine-tuning of the department's assault on drugs. Kerik summarized his approach as "going after the bad people and taking them off the streets."
But, of course, the tragedy of Amadou Diallo was that he wasn't a bad guy. He was a good person, killed by the police searching for a vicious rapist. And while New Yorkers are very happy indeed with the drop in crime, they are chagrinned about the mild official punishment of the four officers, who were barely sanctioned for police malpractice.
Mickey Blum, president of Blum & Weprin, which conducts the polling for the Daily News and New York 1, says that New York opinion has stayed fairly consistent since the shooting. "Something dreadful happened," she says. "Something went very wrong. And most New Yorkers have pretty consistently felt that those cops and the department should be held responsible in some way." She adds that many New Yorkers think that if Diallo had been white he would not have been killed.
RACIAL PROFILING'S UGLY FACE
This reminds New Yorkers once again that a racial disparity exists on many issues of crime and justice. Much of that disparity is due to the reality that day in, day out, black Americans are more vulnerable than white Americans to being stopped by the police, fairly or unfairly.
As Harvard Law Professor Randall Kennedy points out in his book, "Race, Crime, and the Law" (Pantheon), cops stopping an African-American male for no apparent reason other than the color of his skin is not unlawful in most jurisdictions. The courts permit law-enforcement officials to use race as a "risk factor" that justifies a stop-and-search procedure.
Kennedy calls this strategic racial discrimination by police officers a "short cut," a helpful way for police to use their resources more efficiently. If 80 percent of drug-runners are young black men, what's wrong with taking race into account when investigating the crime, asks Kennedy, himself an African-American.
What's wrong, he answers, is that the police use of race as a proxy for suspiciousness creates enormous day-to-day distrust and alienation among black Americans. And that matters to all Americans for two reasons. First, opening the door to strategic, rational discrimination condoned by the courts (including the Supreme Court) also opens the door to invidious racial discrimination, the kind that all decent people would condemn.
Second, a black person's being stopped by the guardians of law and order comes back to haunt the community when those who have been detained become lawyers, judges, jurors, and bring with them the anger they feel over unwarranted harassment and humiliation by police and, by extension, the courts. Halting this practice will not solve all problems, but will go far toward draining the deep sense of injustice African-Americans feel, Kennedy argues.
In the May 2 Daily News, mayoral candidate Fernando Ferrer applies a similar argument to New York, pointing out that what he calls the "tragically bad judgment" of the Diallo officers cost an innocent man his life. This should, argues Ferrer, cost them their badges and guns. The failure "to prosecute police misconduct vigorously," he writes, sends the message that the justice system is flawed, and that it protects others, not them. He concludes: "When you create pervasive doubt about the fairness of the system, it becomes that much more difficult for law enforcement to win convictions before juries, no matter how legitimate the case."
MISDEMEANORS AND POLICE ABUSE
The tragedy of Diallo is so enormous that it overwhelms a more routine police-community problem -- and that's the problem of discretionary stops by police of people either acting suspiciously or committing minor offenses. There is no question but that a safe city requires smart, competent, decent police officers to patrol the streets and exercise careful judgment in stopping citizens. Yet the problem of discretionary stop-and-frisks has festered in New York for a long time, as has the problem of full arrests for minor offenses. Now the Supreme Court has weighed in with a 5-4 decision validating full arrest -- including handcuffs and jail -- for a petty offense. In the case before the Court, it was a suburban soccer mom in Texas not wearing a seat belt.
A cop stopped Gail Atwater, who said that she had been driving slowly (15 miles per hour) without a seat belt on an empty street to look for a lost toy. She had let her children unbuckle their belts to look out the windows.
Officer Turek had stopped her once before for not wearing a seat belt, a misdemeanor in Texas. Writing for the majority, Justice David Souter summarized what happened: "Respondent Turek, then a Lago Vista policeman, observed the seat-belt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car and drove her to the local police station, where she was made to remove her shoes, jewelry and eyeglasses, and empty her pockets. Officers took her 'mug shot' and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seat-belt misdemeanors and paid a $50 fine."
Thus the Supreme Court held Officer Turek's action to be reasonable under the Fourth Amendment, which begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Souter noted the humiliating character of the arrest over a "very minor criminal offense," but said he was comfortable relying on the "good sense" of local lawmakers and peace officers to keep such humiliating arrests from becoming excessive. He said there is a "dearth of horribles demanding redress."
A dissent, written by Justice Sandra Day O'Connor, pointed out the officer's intent to "threaten, frighten and humiliate" Atwater, and the completely unnecessary character of the arrest and jailing. The common law, argued O'Connor, would have barred the arrest because the traffic violation was not a breach of the peace, making the arrest unreasonable.
Most Americans probably thought that our majestic U.S. Constitution protected us from this kind of police excess. An arrest, of course, is the ultimate seizure of the person -- and an arrest over a patently trivial matter would seem on its face to be unreasonable.
In the last few years the Supreme Court has tended to affirm the authority of police officers to stop, detain, and search citizens in a wide variety of circumstances. It has substantially expanded the ability of cops to seize and search vehicles, including handbags found in vehicles, without warrants. It has okayed police stopping someone who has fled on sight of a cop in a high-crime area. On the other hand, the court also held that a cop could not search a vehicle that had been stopped for a traffic violation and only a traffic violation. Thus there's some irony that it was a seat-belt violation -- a truly low-level offense -- that has provoked this assertion of a cop's authority for full arrest for any offense.
Newspaper editorials across the country have expressed a great deal of anger and outrage about the decision. But here's the shocking thing: The Supreme Court is right, or at least "right" in the sense that legislatures and courts have been approving the practice of what they call "warrantless" arrests for misdemeanors for 200 years. So why are many of us shocked? Perhaps because it has not happened to most of us personally.
Criminal defense lawyer Robert E. Levy points out that in New York a police officer can arrest anyone for any offense, including a petty offense, that is committed in his or her presence. A cop can arrest you for a speeding ticket. Cops generally don't, because they are guided by internal police memoranda on what is "arrestable." For a while, says Levy, petty offenses were arrestable in New York. A public uproar resulted in the police pulling back from this. The public didn't want arrests for jay-walking, littering, or dogs off the leash, however annoying some of these habits might be.
Levy also notes that an arrest is not supposed to be a punishment. Its purpose is to gain the appearance of the offender before a magistrate for adjudication. The cop is simply a conduit. If the offender has identification or is known personally to the cop -- as was Mrs. Atwater in the Texas seatbelt case -- and if there is no other reason requiring an arrest, such as hidden drugs or a weapon, then a desk appearance ticket is the usual and proper procedure.
But here is the importance for New York and other big cities: Misdemeanors or less have provoked some of the worst police incidents. Rodney King's driving while intoxicated in Los Angeles, Anthony Baez in the Bronx tossing a football that hit a police car, or the young man with several misdemeanors outstanding killed by a police officer in Cincinnati, precipitating the recent riots. They were all minor offenses with grave consequences.
And the New York Police Department's policy of regularly strip searching people arrested on misdemeanor charges cost the city $50 million four months ago to settle a class action law suit involving 63,000 people illegally searched in Manhattan and Queens. You cannot do a strip search if you know who the person is, says Levy, and have no reason to think drugs or weapons or anything dangerous is involved beyond the petty offense: "The key word in the Fourth Amendment is 'unreasonable.' The public was outraged, the city agreed to the settlements, and the strip searches stopped." (The strip searches apparently continued in Brooklyn Central Booking, according to a suit filed May 2 in federal court. Newsday says that the owner of a manufacturing company, a teacher, a high school student and four other Brooklyn residents have sued the city claiming they were improperly strip searched after arrests on misdemeanor charges. Their lawyers said thousands of other people arrested on misdemeanor charges may also have been improperly searched over the past three years.)
If the Supreme Court is right that a full arrest can follow an offense, no matter how petty, then we need legislation to tighten arrest standards to ensure that spiteful officers, like Officer Turek in Texas, do no further harm. Better yet, we need legislation limiting arrests for trivial offenses.
Says Levy: "In this modern age, the cop is in constant radio communication, and can always find out whether a person is wanted or not. People these days are generally carrying enough identification that it would be unreasonable to seize them when all you want them to do is appear in order to pay a fine. Certainly statutes should forbid an arrest with jail when the offence is one that is either highly unlikely to lead to jail--or when jail is even statutorily forbidden."
The day the Supreme Court decision was handed down affirming the reasonableness of the arrest, the Texas legislature passed a bill outlawing such arrests. The New York State legislature should consider the same. Texans are no longer vulnerable. But New Yorkers are.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.