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Mort de Amadou Diallo à New York City

Stephen Gillers
Four Officers, One Likely Strategy

New York Times — April 3, 1999

Two words among the thousands in New York State's penal code will decide the fate of the four police officers who fired 41 bullets at Amadou Diallo. The words are « reasonably believes. »

The officers will be acquitted of murder if they can prove they reasonably, though mistakenly, believed that Mr. Diallo was about to use deadly force against them in the early morning hours of Feb. 4. This is called a justification defense. And in reaching a verdict on this defense, the jurors in the officers' trial will do more than tell us if the four are guilty of murder. They will affect the way we live in New York City and clarify the boundaries of acceptable police conduct.

The officers are charged with two counts of second-degree murder:

• one count says they intentionally caused Mr. Diallo's death
• the other says they killed Mr. Diallo through conduct « evincing a depraved indifference to human life. » (An example of « depraved indifference » murder is driving a car at top speed through midtown Manhattan on a workday; if someone is killed, it's murder even if the driver did not mean to harm anyone.)

The law gives the officers a great advantage here. They don't have to convince the jury of anything. Rather, the prosecutors must prove the absence of justification beyond a reasonable doubt.

The New York Court of Appeals defined the justification defense in the case of Bernhard Goetz, who shot four teen-agers on a New York subway in 1984. Mr. Goetz, who was charged with (and later acquitted of) attempted murder, claimed that the shooting was justified because he feared that he was being robbed. The court ruled that in deciding whether Mr. Goetz's fear was reasonable, the jury could consider any prior experiences that « could provide a reasonable basis for a belief . . . that the use of deadly force was necessary under the circumstances. »

The important question facing the Diallo jury is not likely to be whether the officers believed that Mr. Diallo intended to use deadly force against them, but whether their belief was reasonable.

This would make the scope of the trial much broader than just an inquest into the defendants' conduct. A jury cannot know whether the officers « reasonably » believed that their lives were in danger except in context — and that context is the life of a police officer in New York City in 1999.

The jurors will probably hear competing stories about crime and fear and illegal guns in neighborhoods like Mr. Diallo's. They may also hear stories about other police officers, whom the defendants know or know of, who did not shoot in time and were killed or wounded.

The jury may be told that the officers gave Mr. Diallo time to raise his hands and come forward, but that he delayed and reached in his pockets for an object that, the officers knew from experience, could be a gun. Against all of this, the prosecution may argue that the number of bullets alone makes any claim of justification incredible.

After hearing this evidence, the jury will have to decide if the officers acted reasonably — and its verdict will have momentous implications. If the officers are convicted, individual officers may choose in the future not to use deadly force in situations where, in retrospect, deadly force would avoid more violence. If the officers are acquitted, it could mean that young men like Mr. Diallo who react slowly to police commands or make equivocal hand motions under stress cannot expect the law to protect them against deadly force.

Neither answer would be satisfying, but trials don't have the luxury of merely posing profound questions. Nor can we expect 12 randomly selected jurors to settle these issues for society in a single verdict. The business of the courts is judgments. A verdict in this case will end the legal matter. But the real quest — to re-evaluate the cost of aggressive police conduct and to ask how the entire incident might have been avoided — remains ahead of us.

Stephen Gillers teaches legal ethics and evidence at New York University Law School.