There are some very interesting discussions being generated as a result of the Robert Lawlor acquittal in Hartford last week: what does this say about the community, what does it mean for the future of the city, will the mistrust between residents of the city and the police ever subside, is Hartford really one city or does everyone view the North End as a cesspool? [Even I arose from my slumber to post.]
Now, thanks to an “opinion piece” in today’s Courant, add one more conversation to the list: should there be a special “law enforcement self defense” provision in our law? The piece is authored by former prosecutor John Massameno (who, you might recall, was the prosecutor who oversaw the conviction of now exonerated Miguel Roman). Also, CT lawyers, stop the eye-rolling.
The piece is titled “Don’t charge police over errors”, so you would be right to believe that he is arguing for immunity from prosecution, not just a more expansive doctrine of self-defense. Indeed, most of his “opinion” piece reads like that:
Police officers need our help. They must make split-second but accurate decisions about using deadly force to protect themselves or others from harm. Occasionally, an officer makes a mistake. Absent some aggravating factor, such as an improper motive, the law should not criminalize officers’ good-faith mistakes in judgment. Otherwise, how can we expect them to take decisive action to protect lives when their own could be destroyed by doing so?
Yes, very good. But the crux of his “opinion” is an amendment to the self-defense statute, which would ask the jury to consider the dangers faced by police officers in their day-to-day business:
It gives an officer a defense to a homicide or assault charge when, in the line of duty, he “[makes] a mistake in judgment concerning the imminent use of force against him or a third person.” It requires the trial judge to tell jurors that “in assessing the reasonableness of the physical force used by [the] officer and … [his] belief that physical force would be used against him or a third person, [they must] consider the [officer's] unique status in the enforcement of the law, his background and training in the assessment of and response to the likelihood that physical force will be used against him, and the greater likelihood that physical force will be used against [an officer] than against a person not engaged in the enforcement of the law.”
The law wouldn’t require the jury to believe the defense, so when there’s evidence of some improper motive, such as racial hatred, a conviction for murder is still possible.
[I do acknowledge the apparent flaw in my logic that a normal individual would not normally be in the confrontational position that officers find themselves in when they're making arrests or conducting an investigation, but then again, nobody goes around shooting random people willy-nilly. If that is a flaw in my logic, then that's a flaw in Massameno's logic as well and his proposal should be altered accordingly.]
I’m also unsure of scenarios that this “change” in the law would leave criminalized. He suggests racial hatred, but how difficult is that to prove? Additionally, there’s nothing in a proposal that permits a jury to “improper motive” as a reason to reject self-defense. Massameno’s mention of that is a nod to jury nullification. So, in essence, he’s suggesting a modification to the law that would preclude prosecution of officers who shoot at citizens.
Frankly, I have no problem with this idea. Just expand it to all people, not just police officers. Why is my drug lord client also not in a unique position of working in a danger-laden profession? What about my clients that grew up in, and still reside in rough neighborhoods? They’re liable to be robbed and shot at any point. Why shouldn’t this extend to them as well? After all, regular self-defense makes no distinction between those engaged in legal and illegal conduct.
Of course, I have no doubt that Massameno wouldn’t agree with me. [The rest of the post is a bit of a sidetrack, so skip to the comments if you don't care.]
Massameno seems to struggle mightily throughout this “opinion piece” with his advocacy for those that are, in every sense of the word, criminal defendants and those that he normally associates with that phrase. In essence, he’s making the “they’re one of us, not one of them” argument:
[This proposal] does recognize that, when police mistakenly kill or injure someone in the performance of their duties, they should not be treated as common criminals, unless, of course, they are.
I have absolutely no idea what that sentence means. It seems to be internally contradictory: either they made a mistake or not, in which case it shouldn’t matter if they’re a common criminal (whatever that means). Even if the dirtiest cop in the world mistakenly shoots someone in the performance of his duties, he should get the benefit of Massameno’s proposal. But I don’t think Massameno can bring himself to say it. He has to still hedge his bets on the off-chance that the cop is really, really bad. In which case, he’s “one of them”, or something.
Of course, Massameno seems to have forgotten that a successful self-defense claim doesn’t negate the fact that a crime was indeed committed, thus turning the actor into a “criminal”. It simply justifies that criminal act and permits the actor to be treated as if he committed no crime.
Ironically, in the early part of the “opinion piece”, Massameno goes on at length about an Officer Smith, who 10 years ago shot and killed some common thug, but someone had the nerve (the nerve!) to charge him with murder, “a Class A felony, punishable by up to 60 years in prison!” (Yes, that is a direct quote, exclamation and all.)
Although Smith was not convicted of murder, he was convicted of manslaughter and sentenced to six years in prison. The conviction was reversed on appeal. Just before his new trial, wanting to avoid prison, Smith felt compelled to accept a plea agreement that turned him into a convicted criminal.
Yet, what if Smith had lost his appeal? The original conviction would have been upheld and Smith’s life would have been destroyed. Given the publicity surrounding his trial, with civil rights advocates claiming that he shot Reid because he was black, Smith probably would have met a terrible end in prison at the hands of the type of criminals he had vowed to bring to justice.
But…but…I thought only guilty people pled guilty. What’s that? The Earth is not flat?
Anyway, as I said, I haven’t made up my mind either way on this proposal, or something like this. It’s just a discussion, after all. So what do you think, you-who-are-less-snarky-than-I? Should there be a special hazardous duty provision? Should it apply to everyone? Or is the law of self-defense fine just the way it is? If you like this post, you can bookmark it for later use.