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Don't Charge Police Over Errors

JUSTICE

JOHN M. MASSAMENO

December 13, 2009

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?

Two prominent Connecticut cases illustrate the terrible dilemma our officers confront when they believe their lives are threatened. In 1998, New Milford police Officer Scott Smith pursued a violent fugitive, Franklyn Reid, on foot, brought him to the ground and, believing he was reaching for a weapon, shot and killed him. Reid did have a knife in his nearby jacket. Nevertheless, Smith was charged with murder — a Class A felony, punishable by up to 60 years in prison!

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.

Last week, a decorated Hartford police officer, Robert Lawlor, was acquitted of a similar charge. In 2005, Lawlor was on duty in an area of Hartford plagued by drugs and violence when, he said, he saw a young man, Jashon Bryant, with a gun. He testified before a grand jury that he approached the car that Bryant entered as a passenger and that the driver disobeyed his command by starting the car and driving toward him.

Lawlor testified that, when he saw Bryant reaching for a gun, he shot both of them. The driver, a felon and admitted drug dealer, recovered from his injuries, but Bryant died. Although cocaine was found in the car, no gun was recovered. The investigation into the shooting and pretrial proceedings consumed 4 1/2 years of Lawlor's life and resulted in his leaving the police force.

Yes, he was acquitted, but only after being treated as one of society's worst criminals, also accused of racial bias. Anyone who thinks that the system worked in either of these cases has no clue what these officers and their families endured.

It's time to put an end to this appalling scenario. We should not compound one tragedy by creating another: criminalization of good-faith mistakes officers make. They need to make those fateful decisions of life and death without fear of professional destruction. Otherwise, how could we hope to find conscientious officers who will truly "serve and protect?"

The Smith case troubled me, so I drafted a law that should bring some rationality to the situation. It doesn't immunize the police; they're not above the law. It 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.

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. Nor does the proposal prevent a conviction of the misdemeanor of criminally negligent homicide. It provides no defense to a civil suit against the officer or his department if either was negligent, such as when a department fails to provide proper training.

It's time for Connecticut to protect police officers who make honest mistakes as they do their jobs. If we don't treat as common criminals the doctors, lawyers, judges or engineers who make good-faith mistakes that result in death or serious injury, we should not treat police officers differently. Their human frailty should not render them criminals.