How to protect other Rodney Kings


THERE is a constructive step that this nation can take right now to provide its citizens with a fair remedy for police brutality of the kind we have seen in Los Angeles.

Congress should enact and President Bush should sign a civil rights protection act of 1992 -- a new law that would permit the prestige and resources of the federal government to be enlisted in support of civil lawsuits for victims of police misconduct.

The acquittals in the Rodney King case tell us many things about the many issues that confront urban America. But one of the most important messages the acquittals send is that criminal law is often an incomplete and inadequate instrument for adjusting the competing demands of law enforcement and the rights of citizens.

Whatever one's views about whether the four Los Angeles police officers used excessive force in subduing Rodney King, the core problem in their trial was that the jurors had only two extreme choices -- either find the officers guilty of a crime or completely exonerate them.

Two major obstacles stood in the way of finding the officers guilty, as they do in every criminal police-misconduct case.

First, the jurors must not merely find that excessive force was used; they must be persuaded of that conclusion beyond a reasonable doubt. Many jurors might have been persuaded by a lesser test that is applicable in ordinary civil trials -- proof by a preponderance of the evidence (more than 50-50) -- that excessive force was used. Some jurors, obviously the 12 in California, are not persuaded by the high standard that applies in criminal trials.

Second, in all police-misconduct criminal trials, there is an inevitable reluctance on the part of ordinary citizens to brand a law enforcement officer as a criminal. In a few cases, jurors will impose that label, but often they will not, even if they think that the police acted improperly.

For most grievances, society does not rely exclusively on criminal law. A civil remedy that is usually available enables a juror to condemn wrongdoing without being persuaded beyond a reasonable doubt and without branding a defendant a criminal. A jury in a civil case can award money to the victim, not merely to compensate but, through punitive damages, to express its sense of the community's outrage over the crime.

At present, there is a federal civil remedy for police misconduct, but it is woefully inadequate. A victim of police brutality may sue a police officer for using excessive force. This statute, however, has several serious deficiencies.

The victim alone must initiate the suit, the defendant is customarily the police officer rather than the city or state that employs the officer -- and the officer is usually exonerated, despite his wrongdoing, if the jury finds that he acted in good faith.

A new federal remedy should include the following provisions:

* A civil police-misconduct suit would be brought by the United States on behalf of the injured victim.

The case would be investigated by the FBI and presented by the United States attorney's office.

* The suit would be brought directly against the city or state that employed the police officer.

A city now pays when a garbage collector negligently causes a motor vehicle accident; the city should similarly pay when one of its officers commits an act of police brutality.

* The defense of good faith would be eliminated. The issue for the civil jury would be simply whether the officer used excessive force. The reasonableness of his belief in the lawfulness of his actions should not stand in the way of the city's obligation to pay damage to the victim of his wrongdoing.

The current demands for federal intervention in cases of police misconduct fail to recognize that existing federal remedies are inadequate. All the Justice Department can do is bring a criminal civil rights action. Such a prosecution might succeed, but it would encounter the same obstacles that were faced by the state prosecutors in Los Angeles.

A new civil suit brought by the federal government offers the best hope of providing a lawful means of remedying unlawful conduct against citizens.

Jon O. Newman is a judge on the United States Court of Appeals for the Second Circuit.

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