NEWSWEEK: What kind of precedent does this verdict set? Eugene O’Donnell: I think it underscores the reality that the police have broad power in our society to do their job. When police officers are assigned to activities designed to make people safe, they are entitled to defend their lives and the lives of other people, so there is very broad legal protection for them to do that.
We could still see some [departmental] disciplinary action in this case, right? Yes. One of the downsides to the whole idea of having a criminal prosecution is that it diverts attention from the reality that there are many remedies for police bungling and police mistakes–and I think you could have a strong argument that there should not be a criminal prosecution in a case like this. The range of remedies for police misconduct includes a civil suit against the city, disciplinary action or, with the NYPD in recent times, having the officer removed from enforcement activities. Basically, it’s a career-ender.
It seems that, even if they’re not guilty of manslaughter and the other criminal charges against them, 50 shots fired on an unarmed man should still raise some red flags. The only time the police should be shooting is if they have an actual, legitimate fear that they’re going to die, that someone else is going to die, or that someone is going to be seriously injured. And if that is the reason they’re firing, it’s really impossible to dictate to them a magic number of shots that should be fired … Police officers in the NYPD have about a 20 percent hit rate, so 80 percent of all shots are misses. If the only reason they should be firing is if they think they’re going to die, how can you step in and try to tell the officers how many shots to fire?
It seems clear that fault extends far beyond the individuals involved in the case. This case has caused the NYPD to undertake a whole review of its undercover policies. Because, you could also argue that [the real issue] is decision-making about sending undercover officers into a club like that. Police officers should be sent into these kinds of situations only after the most searing kind of thought and deliberation. Their mission should be clear. The rules of engagement should be clear. They shouldn’t just be sent in at the drop of a hat.
We haven’t seen quite as outraged a reaction to this verdict as there was to the Amadou Diallo case, which was likewise high profile and racially charged. Why do you think that is? Policing really is a street-level operation of government, but the most important operations of government take place in city hall at the municipal level. This city hall that we have in New York now is one in which the mayor prides himself on relationship he has had with the African-American community. This is in contrast to the last mayor [Rudy Giuliani], who perversely seemed to pride himself on the poor relationship he had with that community. So, there’s a much higher trust level. And, of course, in this case, the officers are multi-ethnic, so it’s not the old story of white officers shooting black people with impunity.
Still, regardless of the ethnicity of the police officer firing the shots, it seems to raise a lot of the same questions about why the shots are often fired in particular neighborhoods and at people of a particular race. As well it should. The history of policing in America really is the history of race relations. So, if the takeaway from this is that there’s no problem because the police weren’t convicted, then that would be tragic and that would be completely missing the point. This was an operation that was extremely problematic, and every effort has to be made to make sure it never happens again.
Also controversial with the Diallo case were jury biases in Albany versus the Bronx. Here, similar concerns about bias led the three detectives to waive their right to a jury and seemingly hedge their bets with only a judge. What does that say about the system’s ability to provide fair trials when these issues of race and law enforcement come up against one another? This really is a legal case more than your ordinary criminal case, because the law of self-defense is very favorable to the police. I think what they were trying to avoid was the possibility that a jury of individuals might say, well, with so many charges, we have to convict them of something. New York law allows police … to make pretty serious mistakes and still not be criminally liable, because the state has to disprove any justification beyond reasonable doubt–which is a very high standard. A judge has to put himself in the police’s shoes and look at the case through their eyes. With the jury, the concern would be that the jury would say, well, let’s compromise. But this judge saw that if you have doubts about whether the cops are completely justified, then, following the law, you must return a not guilty verdict, which is what he did.
You mentioned before that the shooting forced law enforcement to rethink certain aspects of their work and relationships with other agencies. How so? There’s been a serious over-reliance on police in this society. Police should not be doing everything. In a democratic society, police should be in reserve for tasks when you absolutely need them. So, for example, the Kalua Club, where this incident occurred, isn’t a club that continues to operate. It’s a club that’s probably violated numerous laws, and, if there are community concerns, every regulatory body [like the] state liquor authority, should be engaged to stop a club like this from operating, before you take the dramatic step of sending armed undercover police onto the premises. And they’ve already made changes in the way undercover operations are done.
So basically, there are much easier things the city can nab a place on to avoid extreme action like this. Yes. If there really is a demonstrable, provable community concern, there should be a laundry list of things that should be done, and police should be last on that list. They should be the last resort, not the first.
Race is obviously a charged political issue on the national stage right now. Is there a larger message in this trial? The larger message is that there’s an over-reliance on the criminal-justice system, and that that has really fallen in a whole host of ways on minority Americans. This is just one example. And it’s really not fair or decent to blame the cops–they’re not the ones who create the system that we have. The outrage that should really be sparked by this event should be over how we have a system where so many minorities end up on the receiving end of our criminal-justice system? Why are they constantly on the receiving end? Can’t we have a more balanced and a more just approach, and a more decent and humane approach?
