May 1992 letter from three Howard University School of Law students to President George H.W. Bush advocating that the United States Department of Justice invoke the Petite Policy to initiate a criminal action against the Los Angeles Police Department police officers responsible for brutally beating Rodney King despite the fact that these offers had been acquitted in a California state court. The letter, which was read in front of the White House by Thomas Mitchell to hundreds of people who had gathered to urge the federal government to take action, sets forth a clear legal basis to permit the Justice Department to prosecute those responsible for the trampling of Rodney King\u27s civil rights

Burrell, Scott C.

Dial, Alan R.

Mitchell, Thomas W.

English

Texas A&M University School of Law

Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 5-1992 Justice for Rodney King Scott C. Burrell Alan R. Dial Thomas W. Mitchell Texas A&M University School of Law, thomas.mitchell@law.tamu.edu Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar  Part of the Civil Rights and Discrimination Commons, Law and Race Commons, and the Law Enforcement and Corrections Commons Recommended Citation Scott C. Burrell, Alan R. Dial & Thomas W. Mitchell, Justice for Rodney King, 1 How. Scroll: Soc. Just. Rev. 30 (1992). Available at: https://scholarship.law.tamu.edu/facscholar/781 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact aretteen@law.tamu.edu. Howard Scroll: The Social Justice ReviewThis memorandum was written in response to the brutal attack by four whitepolice officers on a black man, Rodney King, in Los Angeles in March of 1991. It wasdelivered to the Justice Department by the students of Howard University School ofLaw. The memorandum appears in its original context.Justice for Rodney KingScott C. BurrellAlan R. Dialand Thomas Wilson MitchellT. George Bush, President of the United StatesFROM: The Students of Howard University School of LawRE: Justice for Rodney G. KingDATE: May 4, 1992I. INTRODUCTIONWe, the students at Howard University School of Law, present this letter for yourconsideration. The very concept of justice hangs in the balance as the entire nation and theinternational community recoil in shock from what appears to be a verdict with no rationalbasis. Fortunately for Rodney King and this country, this miscarriage of justice can berectified. The first battle has been lost; however, justice can stiiffprevail.The ideas set forth will establish a clear legal basis for a full and vigorousprosecution of those responsible for the trampling of Rodney King's civil rights. We hopethese ideas receive immediate and careful attention.II. STATEMENT OF FACTSOn March 3, 1991, Rodney King was unmercifully beaten at the hands of severalmembers of the Los Angeles Police Department while other officers stood by and didHoward Scroll: The Social Justice Reviewnothing. Rodney King was brutally struck at least fifty-six times in eighty-one seconds;his leg was fractured; his face was severely lacerated and disfigured grotesquely; and, hisbody was jolted by 50,000 volts of electricity applied by a Taser gun. The majority ofthese blows rained down on a defenseless Mr. King while he was either on his hands andknees or completely prone. None of the four officers tried was convicted on any of thecharges relating to the beating of the unarmed Mr. King. This verdict shocked the nationand incited acts of rage in cities across the nation. The only medicine that can heal thisnation is justice.First, we will examine the United States Department of Justice's authority to pursuethis case under the department's Petite policy. Next, we will examine the applicablecriminal civil rights statute. Finally , we will apply the applicable statute to the facts anddemonstrate conclusively how this case can be successively prosecuted.III. PETITE POLICYThe dual sovereignty doctrine permits the initiation of a federal criminal action,despite a previous state court acquittal, without violating the Double Jeopardy Clause of theUnited States Constitution. 1 Nevertheless, the Department of Justice, under its Petitepolicy, will not pursue every claim otherwise actionable under the dual sovereigntydoctrine.2The Petite policy expressly authorized criminal prosecution where there is (1) a"substantial federal interest demonstrably unvindicated" in the prior state or federal actionand, where, (2) a conviction in the successive proceeding is anticipated. The threshold1 United States v. Anderson, 940 F.2d 593 (10th Cir. 1991). Abbate v. U.S., 359 U.S. 187 (1959).2 Specifically, this internal policy "precludes the initiation or continuation of a federal prosecutionfollowing a state prosecution...based on substantially the same act, acts or transaction unless there is acompelling interest supporting the dual or successive federal prosecution." U.S. Dept. of Justice, United StatesAttorney's Manual, at 9-34 (1989-2 Supp.) (Title 9 Criminal Division).Howard Scroll: The Social Justice Reviewissue in this case is whether a compelling federal interest exists. The Justice Departmenthas specifically stated that civil rights cases are among a priority class "more likely to meetthe compelling interest requirement."3A. COMPELLING FEDERAL INTERESTWe can imagine no case more clearly satisfying the compelling federal interestrequirement. The federal government has an interest in protecting each of its citizens frombrutal force applied under color of law. This interest is bolstered in this case bywidespread perceptions that African-Americans are frequent targets of police brutality.Further, the federal government has no greater interest than in addressing the perceptionthat there are two systems of justice: one black, one white. Despair and frustration withthis system of justice have resulted in cities in uproar.Without question, the compelling federal interest test is satisfied. These interestswere left wholly unvindicated in the state criminal proceeding and the only remedy lies inthe federal court system.B. ANTICIPATED CONVICTION OF DEFENDANTSThe second prong of the Petite Policy requires that the prosecution of the defendantwill likely result in conviction. This case will be prosecuted under criminal civil rightsstatute 18 U.S.C. §242.4 Successful prosecution under 18 U.S.C. §242 will require (1)3 Id. at 9-38 n. 8 (1989-2 Supp.).4 18 U.S.C. §242 (1988) states the following:whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjectsany inhabitant of any State, Territory, or District to the deprivation of any rights, privileges,or immunities secured or protected by the Constitution or laws of the United States, or todifferent punishments, pains, or penalties, on account of such inhabitant being any alien,or by reason of his color, or race, than are prescribed for the punishment of citizens, shallshall not be fimed not more than $1,000 or imprisoned not more than one year, or beth;Howard Scroll: The Social Justice Reviewidentifying a constitutional right, (2) proving that this constitutional right was deprived, and(3) demonstrating that the right was willfully deprived.1. Constitutional RightThe Fourth Amendment provides the right to be free from excessive force, undercolor of law.5 This right is at issue in this case. The only significant question is whetherthis right has been deprived.2. Violation of the Constitutional RightIn United States v. Schatzle6 the court defined reasonable force as only that forcenecessary to subdue a suspect: "how much force the agent is entitled to use depends uponhow much force of resistance he encounters." 7 Once a suspect is subdued, the level ofexcessive force may be satisfied by as little as one blow. The case of United States v.Golder8 illustrates this point. In Golden, an officer apprehended the victim who hadallegedly run a red light. He struck the victim, requiring eight stitches. There wascontroverted evidence that the officer only struck the victim because the victim wasresisting arrest. Even so, the appellate court determined there was sufficient evidence ofexcessive force to sustain the verdict.Unlike Golden, where only one blow struck the victim, in the King case, the fourofficers struck Mr. King at least fifty-six times. While in Golden, the victim was standing,and if bodily injury results shall be fined under this title or imprisoned not more thanten years. or both; and if death results shall be subject to imprisonment for any termof years or for life.5 Graham v. Connor, 490 U.S. 386. 394 (1989).6 United States v. Schatzle, 901 F.2d 252 (2d Cir. 1990).7 Id at 255.8 United States v. Golden. 671 F.2d 369 (10th Cir. 1982).Howard Scroll: The Social Justice Reviewfacing the officer before being struck, the defendants in the King case delivered manyblows after King was on his hands and knees and still more blows were struck after he wasobviously prone. Finally while in Golden, the defendant's eight stitches were deemed asevidencing serious injury, in the case at hand, the officers fractured Rodney King's leg,caused extensive facial lacerations, and left King with various head injuries.3. WillfulnessWillfulness is essentially a question of intent.9 Screws v. United Statesestablished that the intent requirement was that of specific intent. (However, the federalcourts have now expanded the interpretation of the specific intent requirement). In UnitedStates v. Messerlian1 0 , the court included under specific intent "acts committed in recklessdisregard of the law as [the defendant] understood it."The standard of reckless disregard is satisfied when a person acting under color oflaw consciously disregards a substantial and unjustifiable risk that his conduct will depriveanother's constitutional rights or guarantees. 1 1 Under this test, specific intent can beproved by circumstantial evidence. 12 This is a sound interpretation of the specific intentrequirement. We strongly urge that the Justice Department adopt this view in theprosecution of this case.A specific intent to deprive Mr. King of his constitutional right to be free fromekcessive force is indicated by racist comments before and after the incident, inappropriatejokes made to Mr. King at the hospital soon after his arrest, and the officers continuedassault after he had signaled that he had surrendered..9 Screws v. United States, 325 U.S. 91 (1945).10 United States v. Messerlian, 832 F.2d 778, 791 (3d Cir. 1987).11 See MODEL PENAL CODE §2.02 (c).12 United States v. Dise, 763 F.2d 586, 592 (3rd Cir. 1985).Howard Scroll: The Social Justice ReviewIV. CONCLUSIONBased on the foregoing analysis and the legal tests mandated, conviction is nearlycertain assuming the following:First, that an unbiased jury is chosen from a fair cross section of a community witha similar demographic makeup as Los Angeles, CA. Second, and most importantly, thatthe United States Department of Justice vigorously prosecutes this case. This will requirethat the Justice Department assign this case the highest priority evidenced by staffing theirbest personnel and devoting any and all resources which can be brought to bear. Only thislevel of commitment will ensure that justice triumphs.cc: William Barr, Attorney General of the U.S. Department of JusticeCongressional Black Caucus

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Justice for Rodney King

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