June 14, 2011 | New York Daily News

Feds Must Resist Push to Prosecute Cops who Killed Sean Bell

It's a recurring pattern, as familiar as Rodney King asking whether we can't all just get along.

Police respond to a disturbance, the kind that's inevitable in a big, bustling city's flash points. As much by instinct as conscious decision, officers use force, apprehending danger in a pressure cooker moment. The use of force is understandable, but the degree of it is at least arguably excessive. A black suspect is severely injured, or killed. The suspect turns out to be innocent. The incident is a tragedy.

The grievance industry gins up, tapping the human emotion that says: The system is quick to prosecute us, but looks the other way when we're the victims. The demagogues demand justice, but it's not really justice they want. They want a very particular outcome: Police officers convicted – regardless of the evidence.

For rabble-rousers insistent that a mythical portion of the community's members are imprisoned because of who they are, not what they've done, evidence is irrelevant. The distinction between a crime and a grievous mistake is lost. Justice, society's color-blind commitment that no one is convicted absent proof beyond a reasonable doubt, is beside the point. They want the police convicted.

And if they don't get the conviction in Round One, the state prosecution, they march right to the federal doorstep. They demand that the Justice Department give them Round Two: a new prosecution for violating the victim's civil rights.

But again, though they demand justice, it is not justice – proof beyond a reasonable doubt that police intentionally deprived the victim of his federal rights – that they want. The grievance industry craves an outcome, convicted cops, even if it has to be extorted with threats of “no peace” or shutting down a city.

Often, the feds entertain these demands. Sometimes, as in Rodney King's case, they should. Sometimes, the abuse of rights is so extensive and so objectively outrageous that to turn the victim away would flout justice.

But that is not the Sean Bell case. A federal civil rights investigation in the tragic Bell shooting – which advocates are now asking for – would endanger civil rights, not vindicate them.

Federal authorities are permitted to prosecute despite a state acquittal because of the Dual Sovereignty Doctrine, an exception to our Constitution's double-jeopardy principle. Because the federal and state governments are separate sovereigns, an acquittal (or conviction) in a state case does not bar the Justice Department from indicting.

Plus, double jeopardy prohibits multiple prosecutions for the same crime. State manslaughter and federal civil rights violations may arise from the same incident, but they are different crimes.

Yet, in deciding whether to intervene after a state acquittal, the Justice Department stays mindful of our society's resistance to double jeopardy. A defendant should be forced to endure the strain of a second trial only if a glaring injustice has been done and it's apparent that civil rights were denied due to some noxious motive like racial prejudice.

Here, neither is true. Sean Bell's shooting was a horrible mistake, but not a crime. A grand jury refused to indict two of the five officers who discharged their weapons, obviously deducing that at least some shooting was reasonable. The judge's acquittal ruling is thoughtful, pointing out glaring inconsistencies in the state's case. The incident, moreover, happened in mere seconds, and two of the indicted officers are black, as was Bell. It is preposterous to think the police acted out of racial animus.

Most significantly, however, the community has civil rights, too. Police cannot protect those rights if every tense judgment call, every mistake, could result in their being hounded in court after court, regardless of justice. They will shrink from their duty. The law-abiding people of Queens will bear the resulting loss of life, liberty and property.

The Justice Department's obligation is to protect those rights, not compound a tragedy.

Andrew McCarthy, a former federal prosecutor, is the author of “Willful Blindness: Memoir of the Jihad.”

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