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Can Tragedy Be Legislated Away?
A bad bill ends up in the trash.


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Every so often you hear of an idea so monumentally stupid you just know it had to have been dreamed up by someone with an Ivy League education. So when I heard of a bill put forth by New York State Senator David Paterson that would have restricted–to an absurd degree–the use of deadly force by police officers, I looked into the legislator’s background for the source of his confusion. Yes, there it was in his online biography: Paterson is a graduate of Columbia University, cradle of who knows how many other similarly harebrained notions.

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Paterson’s bill, which he proposed following the February 2000 acquittal of four New York Police Department officers in the mistaken shooting of Amadou Diallo, would require police officers to use as little force as necessary to stop a suspect’s hostile actions or prevent him from escaping. The New York Sun reported on the legislation last week, saying that if the bill were enacted, “police officers would be permitted to use the minimal amount of force to [sic] ‘needed to stop’ a suspect. For instance, according to the bill memo, an officer who is under attack would be required to shoot a suspect in the leg or arm if such actions would stop the suspect from harming the officer or escaping.”

This is stunning in its ignorance, but it gets worse. “Further,” says the bill memo, “the number of times an officer shoots a person should not exceed the minimal number necessary to stop the person. If one shot accomplishes the purpose, it is neither necessary or appropriate for an officer to empty his barrel.”

Now, Paterson is legally blind and presumably unfamiliar with firearms, but is there no one on his staff, no one with whom he consulted before proposing this folly, who knows that a weapon’s ammunition is carried in the magazine and not the barrel? But the technical defects of the bill are the least of its problems. Most objectionable is the threat it poses to police officers who would be forced to make the split-second choice between protecting themselves from a violent attack and protecting themselves from a turn in the defendant’s chair at a criminal trial. For under Paterson’s bill, if an officer were to kill a suspect by shooting him more times than, say, some politically motivated district attorney deemed necessary, the officer could face a second-degree manslaughter charge and a potential 15-year sentence.

Such a nonsensical piece of legislation might have been ignored and found its rightful place in some wastebasket in Albany had not New York Attorney General Eliot Spitzer chosen Paterson to be his gubernatorial running mate. Paterson’s place on the ticket brought with it the kind of scrutiny all but unknown outside the Empire State, and when reporters started asking Spitzer about the proposed law, the leading Democratic contender ended up with egg on his face. “Eliot is not in favor of this revision to the penal code,” said Ryan Toohey, Spitzer’s campaign manager. “When David agreed to be Eliot’s running mate, we knew they wouldn’t be in lockstep agreement with each other. That’s part of how good relationships work.”

We’re all grateful for this lesson on harmonious relationships, but I’m guessing Spitzer’s reaction to the controversy was somewhat less sanguine than Toohey’s statement would suggest. The attorney general revels in media attention like few others, but even one as keen for the spotlight as Spitzer is bound to be discomfited by the very public revelation that his running mate just might be a kook.

Eager to portray himself as rational, on Tuesday Paterson agreed to pull the bill after what he called a “productive and positive meeting” with John Grebert, executive director of the New York State Association of Chiefs of Police. We might suspect that in addition to this productive and positive meeting, Paterson was spurred to action after a visit to Spitzer’s woodshed, and after being skewered to a fare-thee-well in a New York Post editorial.

Though Paterson’s bill is now history, the mindset that engendered it lives on. He drafted the bill because he was angered by the jury’s verdict in the Diallo case and sought a legislative remedy. “I think most people felt the police officers [in the Diallo case] had acted inappropriately,” he said Tuesday, “and I wanted try to ensure that such a tragedy would never happen again. While that is still my goal, I realize on reflection that this bill was not the best way to pursue it.”

Thus is revealed the politician’s impulse–usually the Democratic politician’s impulse–to try to avert any type of tragedy or misfortune with a simple stroke of the legislative pen. Examples of this quixotic impulse abound, but their consequences are most often merely ineffective and wasteful rather than deadly. Perhaps New York hasn’t yet gone so far off the rails as to embrace Paterson’s vision of the proper use of force by police officers, but one can easily envision such a law such as his being passed in San Francisco or some other city whose political structure is similarly dominated by liberals.

Which raises an important question about crime and crime-fighting. On Tuesday here on NRO, LAPD Chief William Bratton and criminologist George Kelling presented a defense of the “broken windows” theory of law enforcement, which posits that when the police take action against relatively minor offenses like graffiti, panhandling, and prostitution, a community’s sense of order is enhanced and the incidence of more serious crime is reduced. As Bratton and Kelling point out, this theory has come under attack, most recently in a February 19 story in the Boston Globe.

From the perspective of a cop who has spent more than 20 years on the streets of Los Angeles, it seems beyond question that the broken-windows theory holds water, and that those who question its validity do so, as Bratton and Kelling argue, for political and ideological reasons. But Bratton and Kelling ignore what is to the average street cop an important aspect of the broken-windows approach, which is the political climate in which police officers must operate.

Bratton and Kelling cite the 25-percent reduction in murders seen in Los Angeles since Bratton took over as chief of the LAPD in 2002. They attribute this reduction to the implementation of a number of strategies, all of which emphasized “order-restoration.” This is true up to a point, but it is important to remember that Bratton took over a police department that had been demoralized to a point of near-ineffectiveness by its previous chief, Bernard Parks. Under Parks, officers were quitting more quickly than they could be replaced, and those who remained increasingly adopted a “drive-and-wave” attitude rather than risk the personnel complaint that often accompanied a confrontation with a criminal suspect.

The rise in crime seen during Parks’s tenure as chief was reversed practically the very day Bratton was sworn in. He made his officers the welcome promise of a more rational approach to citizen complaints, but he has kept that promise only sporadically in his three and half years as chief. Witness the case of former officer John Hatfield, who was fired from the LAPD after being shown on television hitting a fleeing car thief with a flashlight. Hatfield’s termination was nakedly political, coming as it did despite the fact that the suspect only slightly injured in the so-called beating, and it left many L.A. cops wondering if theirs might be the next hide tacked to the front door at city hall.

Now comes the case of Steve Garcia, the LAPD officer who last February shot and killed 13-year-old car thief Devin Brown at the end of another high-speed chase. To his credit, Bratton ruled that Garcia acted within policy in the shooting, but the civilian police commission, whose president is a long-time, outspoken critic of the LAPD, overruled him. Garcia now faces a departmental trial board that may, if it yields to the political pressure sure to come, vote to fire him.

All of this leaves cops in Los Angeles wondering if fighting crime is worth the trouble. A cop gets paid just as much for taking reports on crimes that have already occurred as he does for arresting the people responsible for them. Yes, “broken windows” is a valid theory, but it is only a theory in any city whose political climate is hostile to its police officers.

Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.



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