The Diallo Case



During the Vietnam War, the court martial trials of Lt. William Calley and other U.S. military personnel who massacred hundreds of unarmed civilians at My Lai was deeply contentious. Conservatives opposed the trials as besmirching the good name of the U.S. armed forces. (Governor Jimmy Carter of Georgia, for example, urged citizens to "honor the flag" as Calley had done.) Liberals called for stiff punishments for those who had violated U.S. military policy. Radicals, however, pointed out that the trials were bypassing the main culprits: the top U.S. government officials whose policies — from foreign intervention to body counts to free-fire zones — encouraged, condoned, and led to the horrors of My Lai, and so many other atrocities.

To be sure, Calley and his troops were not blameless. Neither fear nor stress alone could explain the slaughtered babies or the rapes. That these soldiers went virtually unpunished was indeed unconscionable. But, even if they had all been convicted and harshly sentenced, the real criminals would have been untouched.

The recent non-guilty on all counts verdict in the trial of four New York City police officers charged with killing Amadou Diallo has evoked understandable outrage.

Who can doubt that racial profiling was involved? Officer Sean Carroll testified that in the dim light he couldn’t even tell that Diallo was a black male — but yet he also claimed that there was "no doubt" that Diallo resembled the serial rapist they were looking for. To these white officers, Diallo was suspicious because he was (in Bob Herbert’s phrase) "breathing while black."

Who can doubt that there was reckless disregard for life? Four armed police officers, with bullet-proof vests, approaching a suspect should not need to fire 41 bullets at him to ensure their own safety. It is true that the officers didn’t intend to seek out Diallo to kill him; but it is just as true that they didn’t take the elementary precautions necessary if they were concerned to avoid needless deaths among those they were sworn to protect.

The not-guilty verdicts thus lacked basic credibility. But, as in the My Lai case, even if the defendants had been found guilty on every charge, the real villains would not have been held accountable. Those with ultimate responsibility for Diallo’s death — and for the indignities and abuses suffered by countless innocent New Yorkers, mostly black and Latino — were Mayor Rudolph Giuliani, Police Commissioner Howard Safir, and other top officials of the New York City Police Department. Because none of these individuals was on trial in Albany, the prosecution’s case was hampered by the need to show that the four officers violated Departmental policy. More importantly, because none of the most culpable individuals were on trial, neither true justice nor an end to the underlying problems was possible.

But these real villains are not wholly immune from legal action. Civil rights attorneys led by Nancy Chang of the Center for Constitutional Rights have brought a class action suit in federal district court against the Mayor, the City of New York, the Police Commissioner, the NYPD, and its Street Crimes Unit (SCU), the unit to which the four officers who killed Diallo belonged. The suit alleges that the policy by which the SCU "stops and frisks" people in the absence of a reasonable suspicion that a crime is taking place violates the Fourth Amendment and that people are singled out for these "stops" on the basis of race and/or national origin, in violation of the Equal Protection Clause of the 14th Amendment.

The allegations in this suit might seem difficult to document, given that so many people are likely to be intimidated from filing complaints regarding police misconduct. But a recent study completed by the office of the New York State Attorney General (OAG) provides much useful data. (The study is available on the web at http://www.oag.state.ny.us/press/reports/stop_frisk/stop_frisk.html.) The OAG study found that the scale of these "stops" has been staggering. Over a 15 month period beginning in January 1998, the police filed reports on 175,000 such encounters. The SCU, comprising about one percent of the Department’s 40,000 sworn officers, accounted for more than 10 percent of all the "stops." Moreover, the study cited police informants who said that only one out of three or one out of five of all "stops" actually result in the writing up of a report; Attorney General Spitzer himself has stated that he’s spoken to many officers who say they fill out reports in "at most, 1 in 5, or 1 in 10" cases.

Of those "stops" that were written up, half were of blacks and a third of Hispanics, even though these groups each represent about a quarter of the City’s population. For the SCU, five-eighths of their stops were of blacks and 27% of Hispanics. Commissioner Safir has explained this disparity by noting that minorities are more likely to commit crimes. But the OAG study concludes that even after taking into account the effect of differing crime rates, blacks were stopped 23% more often than whites and Hispanics 39% more often than whites.

Of course, if all those who were stopped and frisked turned out to be carrying guns or contraband, then this wouldn’t be such a problem. In fact, however, a large majority have been found to be completely innocent. For every nine stops, only one resulted in an arrest. And stops of minorities were less likely to result in arrest than stops of whites — indicating that innocent blacks and Latinos were more likely than innocent whites to be deemed "suspicious" by the police. This disparity was even more pronounced when considering stops by the SCU: one out of 16 black stops yielded evidence justifying arrest, compared to one out of ten white stops.

According to established law, a "stop" can be justified even if it doesn’t result in an arrest if it is based on a "reasonable suspicion" of criminal activity. OAG researchers examined a sample of the stop reports and — resolving every ambiguity in favor of the police — found that a quarter of the reports did not provide a justification that rose to the level of "reasonable suspicion." Adding in the fact that reports were apparently only written up for 10-33 percent of the stops, we can conclude that at least half of all stops were not based on "reasonable suspicion."

To those who haven’t been subjected to a stop and frisk it might seem that the inconvenience of the encounter is a small price to pay to capture criminals. Consider, then, one of the narratives included in the OAG report, showing that "stop and frisk" has a very real cost.

A 54-year-old African American female home health aide was walking home at 10:30 p.m. in March 1999 when a white man approached her from behind and grabbed her around the neck. Thinking she was being attacked, she screamed. The man told her to be quiet because he was a police officer, though he didn’t show any identification. According to the woman, "the next thing I knew, the man was forcing me to walk down the street…. He pulled me down the street towards a car. As we got closer to the car, I saw another man get out of it. The man who was holding me forced me to put my hands on the hood of the car, and patted down the sides of my body and legs." The two men, who were police officers, then conducted a full search of her person. When she asked for an explanation, she was told that she fit the description of a drug purchaser about whom they had received a call. She was ultimately told she was free to go, but the consequences of the encounter remained: "Following the incident, I couldn’t sleep well for months…. Eventually, I went to the doctor who prescribed sleeping pills." Rather than walk the five blocks to her job site, she now takes a taxi.

Why blame top City and police officials for such brutal and degrading police behavior? There are many compelling reasons.

It was these top officials who sent out SCU units without adequate training. Safir was so enthusiastic about the SCU that in 1997 he tripled the size of the force, despite warnings from Inspector Richard Savage, the officer in charge, that such an expansion would result in inadequate training and screening. Savage was fired and the expansion went forward. Three of Diallo’s four killers had been in the SCU just a few months and the fourth had been in for a year, including several months of desk duty; none had special training. A retired police official told the Daily News: "Those four guys should not have been indicted. The whole department should have been indicted for recklessness."

It was these top officials who tolerated and encouraged a Rambo-like culture at the SCU, where the motto was "We Own the Street," and their T-shirts quoted Hemingway: "Those who have hunted armed men long enough, and liked it, never really care for anything else thereafter."

It was top officials who gave SCU members unwritten quotas for how many guns they had to seize and arrests they had to make.

It was top officials who put together an elite unit of overwhelmingly white officers charged with focusing on minority communities, ignoring recommendations from the former NYPD Deputy Commissioner for Equal Employment Opportunity to increase the representation of minorities.

It was top officials who ignored the fact that at least a quarter of the filed "stop and frisk" reports did not demonstrate "reasonable suspicion" and that many stops were not written up at all.

And it was the NYPD’s "48-hour rule" that has been another systemic cause of police abuse. The rule prohibits the Department from compelling a statement from any police officer involved in alleged misconduct for 48 hours, giving tainted officers time to coordinate their stories. Such a rule adds to the belief by police officers that they are above the law.

In short, the four SCU officers may have fired the 41 bullets and many additional officers may have abused and humiliated thousands of other people, but these are not random individual acts, but part of a larger policy promoted and condoned from the top.

The class action case against Giuliani, Safir, et al., passed its first hurdle late last year when the judge rejected the City’s request to dismiss the suit. There’s still a long way to go, of course, but there’s a fair chance that those who have really been responsible for the police abuse that has plagued New York City, and especially its black and brown residents, may yet be named and brought to account.





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