Powerless against police brutality: a felon's story.

• Author: Lawson, Tamara F.

1. INTRODUCTION

   Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. (1) Next, envision recovering from those injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. (2) Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record (3) than the knowledge of the serious injuries that the police inflicted upon you. (4) These facts introduce the real police encounter experienced by Mr. Theodore Dukes, an ex-felon, in Miami-Dade County. This shooting incident stemmed from an investigation of Mr. Dukes for the misdemeanor of driving with an unauthorized license plate. (5)

   The criminal and civil obstacles Mr. Dukes faced after his shooting represent a particularly troublesome scenario that many ex-felons experience in police brutality cases. Police brutality victims must confront two very challenging situations: (1) how to successfully overcome the government's criminal allegation that the suspect/victim aggressed the police, and (2) simultaneously preserve the ability to bring a civil rights violation as a plaintiff/victim against the police for the true brutality suffered. The victim's ex-felon status significantly increases the stakes regarding any potential punishment on the criminal side and greatly diminishes the likelihood of success or damage recovery on the civil side.

   Prior felony convictions are regularly admitted under the authority of the Federal Rules of Evidence, specifically Rule 609, (6) based on the rationale that such information is relevant to the credibility of a testifying witness. (7) In criminal cases, a defendant/victim cannot be forced to testify, thus the government's allegation must be proven beyond a reasonable doubt without reference to the defendant's criminal record (8) or mention of his or her decision not to testify. The Fifth Amendment provides this protection. (9) However, in a civil case, the Fifth Amendment protection does not apply and thus, a civil rights plaintiff/victim must testify and consequently ex-felon status is routinely revealed as a fact relevant to the credibility of his or her testimony. (10) In this context, ex-felon victims of police brutality must seriously evaluate the real impact that the revelation of past felony convictions may have on the success of any civil rights litigation against the police.

   Notwithstanding the general veracity rationale underlying Rule 609, (11) this essay suggests that in the limited context of excessive force cases, jurors should be shielded from knowing the ex-felon status of the plaintiff/victim. The rationale for this proposed exception is two-fold: (1) the unfair prejudice suffered by the plaintiff/victim, and (2) the strong public policy need to deter police and therein ensure that a civil rights trial creates a legitimate threat of remedial award to the plaintiff for the wrongdoing by the police officer. As Rule 609 currently operates in excessive force cases, the prejudicial impact on the ex-felon-plaintiff/victim is too great and voids the intended purpose of the federal civil rights statutes by essentially distracting the jurors away from the material facts (12) of the police-citizen encounter into the minutiae of the plaintiff's prior and unrelated criminal convictions. The negative impact is further exploited when the plaintiff's prior conviction is for a violent felony. Due to the legal dynamics outlined throughout this essay, police officers know ex-felons cannot effectively complain about brutality, and correspondingly, ex-felons are rendered powerless and even more vulnerable to excessive force.

   As you get to know Mr. Dukes' experience on the street with the police and in the courtroom seeking redress, you too may begin to question the efficacy of the process and whether it is appropriate for the jury to learn about Mr. Dukes' prior convictions, especially his prior murder conviction, since the police did not know about his record when they decided to shoot him. (13) Federal law provides a statutory civil remedy under [section] 1983 (14) for incidents of police brutality like the one Mr. Dukes suffered. However, Mr. Dukes' story begs the question of whether the articulated remedy is effective or illusory when applied to ex-felons. (15)

2. MINOR CRIMINAL INVESTIGATION AND DISPROPORTIONATE DEADLY RESPONSE BY POLICE: EXCESSIVE FORCE OR SOMETHING ELSE?

   The Dukes case is worthy of analysis not simply because of the serious gun shot injury Mr. Dukes suffered and his ex-felon status, but also because of the minor criminality that Mr. Dukes was alleged to have committed when the police first began to investigate him. Mr. Dukes was not being investigated for a violent crime. (16) He was driving down a street in Miami (17) and the police had no knowledge of his identity or about any of his prior convictions. He was not speeding or driving dangerously; instead, he was targeted by the police for a traffic infraction because the vehicle's license plate (18) did not match the car. As alleged in his civil rights complaint, it was unknown to Mr. Dukes that he was being pulled over by the police because the police officers were in unmarked cars (19) and in plain clothes. (20) Mr. Dukes and his occupants perceived the encounter to be an attempted carjacking, (21) so initially Mr. Dukes did not stop. (22) While still behind the driver's seat, a bullet came through the passenger's side window, missing the passenger and striking Mr. Dukes in his chest. (23) After being shot, Mr. Dukes attempted to drive himself to the hospital. (24) At this point, he heard sirens and realized the carjackers were instead police officers, (25) and he pulled his car over to the side of road. (26) Mr. Dukes exited the vehicle with his hands up, indicating he was unarmed, yet the police slammed Mr. Dukes to the ground and began to beat him. (27) The officers were "stomping and kicking him in a frenzy of police brutality in full view of citizens who were observing the activity." (28) "The beating of Dukes continued and was of an extensive duration and so intense that numerous bystanders screamed for the officers to stop the beating[,] fearing that the officers would kill Dukes." (29) One bystander, who tried to intervene on Mr. Dukes' behalf and who pied to stop the police brutality, was arrested for allegedly interfering with police procedures. (30) At some point, Mr. Dukes lost consciousness and later awoke to find himself arrested and charged with a serious felony against the police. (31)

   Medically, Mr. Dukes' physical survival under these facts was extraordinary. Legally, his case is more serious than the gunshot wound to the chest from which he recovered. (32) Mr. Dukes' story exemplifies a larger endemic problem in our justice system--the existence of police abuses and the lack of effective procedures, deterrents, (33) and remedies. (34) This essay dissects a specific type of police abuse--the type of police behavior that goes beyond mere unnecessary force or an unlawful search. (35) The focus is specifically on brutality (36) inflicted by police officers upon citizens in high-crime neighborhoods during encounters based on minimal criminal conduct, which is usually a traffic violation. In Patterns of Injustice: Police Brutality in the Courts, (37) Professor Susan Bandes defines police brutality as "police conduct that is not merely mistaken, but taken in bad faith, with the intent to dehumanize and degrade [the victim]." (38) In Above the Law: Police and the Excessive Use of Force, (39) Professors Jerome H. Skolnick and James J. Fyfe distinguish police misconduct from brutality by highlighting that police brutality is intentional and typically directed toward citizens of "marginal credibility and status." (40) Skolnick and Fyfe further acknowledge that racial minorities are labeled as a powerless social group. (41) Additionally, ex-felons fit the description of Skolnick and Fyfe's target group due to their lack of status, credibility, and political power, and thus, they are susceptible to police brutality in a way many other citizens are not. Racial minorities are disproportionately represented in the ex-felon population and based on lower socio-economic status disproportionately live in poor and high-crime neighborhoods; (42) therefore, black and brown ex-felons are particularly vulnerable to the police abuse of brutality.

   Young African-American men bear the brunt of the system's injustices during a period in which the nation has moved to a process of mass incarceration. From initial contacts with police, including stops, detentions, searches, and arrests, through prosecution at trial, and finally, at the sentencing phase, African Americans suffer from severe disproportional representation. Rudovsky, supra.

   In Teaching Civil Rights Through the Basic Tax Course, (43) Professor Dorothy Brown provides a narrative of an incident of police brutality she witnessed as a young child in New York City:

   One day ... I was holding my mother's hand because I was not yet old enough to cross the street safely. As we were waiting, a police car was turning right. I recall seeing a black man in the back seat with his hands cuffed behind him and he was being beaten by a police officer. My eyes widened and my mouth fell open as I turned to my mother and asked, ["]Did you see that?["] She said, ["]Yes,["] and explained to me that it happens sometimes. I couldn't believe my eyes or my ears. I followed the car with my eyes as it made its turn; for a brief moment, the handcuffed man and I made eye contact. It seemed as if everything was going in slow motion. The light turned green...