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Cops' state of mind key to any criminal case

BY ANTHONY M. DESTEFANO | Newsday Staff Writer

December 1, 2006

What were the cops thinking when they started shooting and took Sean Bell's life?

That is a key question prosecutors and ultimately a grand jury will have to answer as it decides whether to charge the undercover detectives who fired 50 shots that killed Bell and wounded two others outside the Kalua Cabaret strip club in Jamaica Saturday morning.

Though the New York Police Department is sorting out whether the cops followed departmental procedures, any criminal case will turn on the law of self defense, a number of legal experts said Thursday.

It can be a tricky area, they said, requiring grand jurors to pick through a thicket of evidence and step inside the minds of the cops during the deadly encounter with the unarmed Bell.

"When people say they are unarmed, it is not that simple," said Brooklyn defense attorney Barry Kamins, president of The New York City Bar, previously known as the Association of The Bar of The City of New York.

Even the fact that there were 50 shots fired by the police, something that has shocked the sensibilities of many, doesn't remove the issue of self-defense or justification, said Kamins.

Under state law, a police officer can use deadly physical force if the cop "reasonably believes" that a suspect is using or is about to use deadly force. Whether a cop's belief is reasonable under the circumstances requires investigators to examine all of the circumstances, said professor Abe Abramovsky, who teaches criminal law at Fordham University School of Law. Prosecutors also have to tell the grand jury to consider self defense, he said.

Though all details are not known about the incident, it appeared that one of Bell's friends, Joseph Guzman, spoke and indicated he had a gun during a confrontation with an unidentified man outside the club, police said.

Those words prompted an undercover detective to follow Bell, Guzman and two others to their car, suspecting they meant to arm themselves, said police. That detective then started shooting after Bell, while trying to drive away, bumped him and smashed into an unmarked police van. A lawyer for the detective said the officer insisted he identified himself as a cop and claimed he spotted Guzman make a quick move to his waistband. But police said no gun was found.

Abramovksy said that while use of a gun is deadly force, a motor vehicle can also be considered a dangerous instrument, thereby triggering a self defense reaction by an officer. Furtive movements in a car could lead the officer to self defense, said Abramovksy.

Manhattan defense attorney Steven Frankel said that the cops may have felt they were in danger when Bell's vehicle drove into the officer and the unmarked van. The grand jury will have to grapple with whether the officers reasonably felt in danger, he said.

Thursday, a spokesman for Queens District Attorney Richard Brown debunked rumors that a grand jury had been convened in the case, saying the office was in the preliminary fact-finding stage.