While I’m not inclined to discuss what will happen, since whatever is going to come with verdict expected tomorrow will come regardless of what I have to say, a post by Elaine Chiu at Co-Op appears to anticipate the no matter what comes our of Judge Cooperman’s mouth, it’s wrong by her.
Yet, as the prosecutors have made clear, the justification defense does not cover all fifty shots en masse, but rather law enforcement agents have an obligation to stop using deadly force as soon as their reasons for doing so dissipate. In other words, each shot has to be justified. In the heat of the moment though it is rather clear that the police officers did not reassess their need to use deadly force after each shot. Indeed, Officer Oliver who shot 31 times admits that he did not reassess until he ran out of ammunition and only reassessed at that moment because he had no other choice but to do so.
This was an argument, not a thing to be “made clear.” More importantly, it’s an argument that only a lawprof could love. Even an appellate judge would blush before trying to push this one on the panel. And as any cop will tell you, they fire until they’re done firing. If the shoot is righteous, then it’s good to the last drop.
It’s not the Chiu is technically wrong. Indeed, the use of deadly force is permissible only as long as justified. It’s that there is no practical way to tell where the line is in the middle of the gunfight. Is she arguing that each officer should fire one shot, stop, check to see what’s happening at that moment, then decide whether it’s appropriate to fire another shot?
This argument would easily come into play if the officers fired, stopped firing, assessed the situation and then, without justification, decided to start firing again for fun. But in the hail of bullets, no finder of fact, whether judge or jury, is going to convict the cops if they believe the first bullet was justified and there was no break, or “thing” that happened in the midst of firing, that made it absolutely clear to the cops that the need to shoot had ended.
So what really happened here? Perhaps the police officers were justified in their initial shots but what about the later shots? A more complicated story emerges. Instead of only the reasonable use of deadly force, it is possible that panic and shock and reflex also played a part. I blogged on this point last year at PrawfsBlawg. Unfortunately, the doctrine and practice of criminal law rejected more nuanced understandings of defendants and more appropriate defense strategies that combine both justification and excuse.
I’m unfamiliar with a defense strategy called “excuse”. Frankly, I fail to understand what difference it makes, except to those in the academy who need to give names to things that happen regularly and implicitly in criminal proceedings, whether the defense recognized its strategy to be nuanced or not. If they get a not guilty verdict, even for their un-nuanced effort, they will go home happy.
As for the more nuanced understandings between criminal law doctrine and practice, we can barely get a judge to go along with the concept of due process, no less more academic nuances. I can appreciate that lawprofs ponder these things to a degree that makes us poor grunts in the trenches seem utterly ignorant, since they can’t write scathing articles stretching over 25 pages unless they delve deeply, deeply into the underlying nuance.
But what bothers me about Chiu’s analysis is that it criticizes a real case, and the work of real lawyers and a real judge, in anticipation of a verdict that will invariably be wrong because of its intellectually messy framework.
That’s how cases are tried and decided in the trenches. It’s done with a club, not a scalpel. It’s messy and ugly. There is nothing nuanced about trial level courts. There never has been. On appeal, when lawyers and judges have all day to ponder these critically important questions of theory, criticize them all you want. But don’t jump down anyone’s throat about what happens in the trenches because it wasn’t sufficiently nuanced.
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…Yeah, yeah, but if cops don’t get a handle on return fire volumne, the courts or the legislature is going to have to. The Dept. I worked for went from revolvers, where the avg. gunfight had. 2.1 shots fired by us, to automatic pistols where our shot volumne went way up. More shots mean less hits. More shots mean more chance of hitting the wrong folks. Granted, you walk into the 1912 overture of gun battles, firing once or twice and reassessing isn’t necessary. But most gunfights aren’t the O.K. corral, they’re one on one. Firing one or two shots, reassess, fire more if necessary, thats what I taught as a rangemaster. Since only hits count in a real gunfight, reassessing leads to more hits and less misses. Had that NY cop who shot 31 times done that, he may have shot less rounds and hit more often. His shot volumne and timing indicates to me that he was poorly trained and didn’t have the professional temperment he needed to be a cop.
Of course the cops freaked out. This is NY. They don’t know how to use guns here. They probably never touched a gun until the academy. They qualify on the range once and are lucky if they ever make it back for their annual requalification. They hear a pop and go nuts. Often, they hear the fire of another cop and assume it’s return fire. They aren’t equipped to handle a fight. Remember Larry David?
But the way it’s handled in court is very different. No judge is going to start parsing cops shooting on a bullet by bullet basis. As I said in the post, there are times when it smacks you in the face that there’s a natural break and the cop should have stopped. Without that, the judge isn’t going to challenge the fact that they fire too many rounds and hit too few targets. That’s expected of cops.
Well, the verdict wasn’t a surprise. Rarely will a judge every convict a cop for shooting an Black man. Justice has always been absent when it comes to the black community. Although these cops has gotten away with murder, I hope the victim’s family will pursue justice from a financial standpoint. That seems to be the only thing they (policemen)understand. Only when they’re held financially responsible will they change their ways. Because obviously the “justice system” does not apply to Blacks. But it works well against them, especially when they’re being tried a crime. Case in point, 12% of the US population, and 50% of the prison population. What a justice system?
Difficulties in dealing with the police are an historic challenge. The big issue is that the lack of trust between African Americans and the police will only increase through verdicts like this. The facts are often forgotten, but the pain remains. Attorneys must do a better job bridging the gap between the two groups and helping their clients steer clear of problems.
I can see where the cops could have freaked out but 50 shots is ridiculous. I would say those cops are guilty of murder. At the least they don’t deserve to be on the force any longer.What happened to trial by jury? that judge should be thrown in jail. The whole thing stinks with corruption.
I don’t know where to begin with the outcome of the verdict!!! I know one thing. I’M PISSED!! Now you guys see why Reverend Wright says DAMN America!! I totally agree!! This is becoming all too common where these police officers are just killing black men and getting away with it. There’s no way that you shoot someone so many times unless you’re just a cold hearted person and that’s what these officers are cold hearted cowards!! They are no different from the rest of these guys out here that are murdering people for no reason. Their the THUGS!!
The cops are out of control all over this country. I am a housewife with 3 children. I was sexually assaulted 2 years ago. The detectives held me in my own home, threatened to tear my house apart and shoot me on the spot if I did not shut up.(I was hysterical) They caught the attacker and because he was a freind of one of the detectives They let him go and refused to let me press charges. They have continued to threaten me and harrass me. I now keep a gun with me at all times while I’m in the house alone. I am unable to leave the house without my husband and my life is literally over. I pray for all of those who have been murdered, falsely accused, been sent to prison although they were innocent. I can’t even imagine what this poor man’s fiancee’ and family are going through. I send all my prayers to you and always remember there is a God and these dirty cops will pay the ultimate price: an eternity in hell.
WAHT DID BELL AND ALL HIS FRIENDS DO FOR ALIVING?? ALSO HIS GIRLFRIEND?? WHO WAS PAYING FOR THIS BIG WEDDING AND WHO PAID FOR HER CAR THAT THEY USE TO TRY AND RUN DOWN THE COPS???
While I take it that you support the defendants, none of your questions (in all capital letters, I note) have any bearing on anything. I’m curious, since the defendants were acquitted, which I assume you think is the right result, why are you angry and grasping at straws?
31 shots, by one officer?! Come on! Just imagine that how long it took the officer to fire 31 shots. At what point did they realize ” Hey, we are not recieving any return fire”. 31 shots means that the cop had to reload. During that time I think he would have heard that he was not under fire.
I agree that the comments posted have no bearing on anything that has to do with the case, but I would like to add that if this was a white with his white friends would there be a police presence at the court house? And would we have all of the hoopla!! Going on? I mean really they were not just standing around having a drink when this happend they all(Sean Bell and friends) + the Police played a role in horrible event! I am sick of hearing how the cops over reacted to saving their own lives and the lives of others at that bar.
You need to separate the issues that you’ve mushed together. Sean Bell and his friends didn’t do anything wrong. They had no weapons. They committed no crime. To the extent that people want to justify the police action based upon the car driving toward the undercover, it is at worst a reaction to an unwarranted approach by the UC and at best a defensive reaction to a perceived approach by unknown men with guns.
People inclined to to be “sick of hearing how the cops over reacted to saving their own lives and the lives of others at that bar” do so at the risk of ignoring all facts and allowing their prejudice and emotion replace any semblence of reason.
The issue of whether the police committed a crime in the shooting is not the opposite of the police were justified in what they did. The shooting was not proper, and NO ONE is arguing that the cops did the right thing. It was a terrible mistake, and the cops were absolutely wrong. The judge found that, though they were clearly wrong, their conduct was not criminal. But make no mistake, the shooting was absolutely, clearly and unquestionably wrong and extremely bad police work.
This was not a terrible mistake. It was cold blooded murder. If you had done the same, you would be charged with murder, sentenced consecutively for each and never see daylight again. A mistake would be an officer stopping the wrong person on the free way mistaking him for someone else. I hope the Shawn Bell “mistake” never happens to you.
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