Who Will Indict the Lawbreaking Mayor?

Patrick Dorismond just said no to an undercover drug cop, then wound up dead and smeared.

—Jim Dwyer, New York Daily News, March 19

Mayor Giuliani said yesterday he won’t visit the family of Patrick Dorismond because he doesn’t want to give the “impression” the police shooting was unjustified.

—New York Post, March 23

In a March 21 letter to The New York Times, David Hawkins asked: ‘Is it now standard practice for the Police Department to instigate criminal behavior?’

Although there has been some very good reporting on the police killing of Patrick Dorismond, it is necessary to answer Hawkins’s question—all of us should know what constitutional rights we’ve lost so we can be on guard.

Although Howard Safir’s undercover Operation Condor—which ended Dorismond’s life—was started on January 17, this kind of proactive policing, as it’s known in law enforcement parlance, has been with us for a long time throughout the country.

Instead of focusing all law enforcement resources on solving crimes, the thinking goes, why not get plainclothes cops—like those dressed as derelicts who accosted Dorismond—to create crimes? That is, to entice people into breaking the law and then bust them.

This way the number of arrests and convictions mounts; the police department looks good; and the mayor looks to higher office. The “buy and bust” operation, in which Dorismond was targeted, is a common version of proactive policing. It is dangerous, not only for the unsuspecting mark, but also, at times, for the hunters. Cops have been killed when a “buy and bust” went bad.

But how come it’s legal to entrap someone like Dorismond, who, unarmed, was standing with a friend, trying to get a cab?

Giuliani, in what is particularly disgusting behavior, even for him, is telling us that Dorismond was himself responsible for being killed.

But the cops who approached Dorismond knew nothing about the man they were hoping would sell them drugs. They didn’t know if he had a criminal history or not.

They couldn’t know that Giuliani would later wave around Dorismond’s record, in viciously exaggerated form, like Joe McCarthy with his list of Communists in the State Department. (Dorismond served no jail time for any of his arrests.)

In a constitutional democracy, how can anyone be ensnared this way by the police? For years, there was an often fierce argument on the Supreme Court about entrapment, but, so far, police have been granted appalling latitude.

Entrapment is no defense—according to United States v. Russell (1973)—unless the conduct of the government “is so outrageous” as to violate due process (fairness). Doesn’t the killing of Dorismond meet that definition?

There was a moment of hope for due process in these cases in a 1982 decision (Jacobson v. United States). In a bitterly divided five-to-four decision, Justice Byron White said for the majority:

“Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”

The police tried to entrap Patrick Dorismond, but he refused to commit a crime. He angrily rejected the cop’s inducement.

In any case, since Justice White’s ruling, the Supreme Court has been less and less interested in the rights of individual citizens against the state. The passion of the current majority is to protect the rights of individual states against the federal government.

There are a number of professors of constitutional law I call for guidance on these matters. One of them, Yale Kamisar, who teaches at the University of Michigan, is a leading expert on the individual’s right of privacy against the government.

With regard to the killing of Patrick Dorismond, Kamisar told me: “As a general rule, the police do not even need a reasonable suspicion that someone is predisposed to criminality to approach him or her and provide an opportunity to commit a crime.

“The only way an entrapment defense might work is if the police accost someone, offer an extraordinarily attractive offer to do something criminal, and that offer is accepted.

“Of course,” Kamisar continued, “this kind of ‘buy and bust’ operation is an invasion of privacy, but the way the law is now, the police do not need any specific reason to ask someone to engage in a crime.”

One thing is certain in the aftermath of the killing of Patrick Dorismond. The mayor of this city committed a crime in authorizing the release of Patrick Dorismond’s sealed juvenile release record. That case was dismissed before it ever got to a judge.

Stephen Gillers, a law professor at New York University, is a nationally recognized expert on legal ethics, among other matters. He was quoted in the March 21 Daily News about sections 375.1 and 381.3 of the Family Court Act, which mandate that a juvenile’s arrest and disposition shall “be withheld from public inspection.”

Gillers said Dorismond’s juvenile record “should never see the light of day unless the court allows it.”

Speaking for the state Office of Court Administration, David Bookstaver added: “Absolutely no information was released about the Dorismond case by the court system.”

Rudolph Giuliani is, in fact, a lawbreaker.

Meanwhile, 12-year-old Felix Serieux of East New York tells The New York Times: ” ‘Say no to drugs.’ They tell you that in school. So what happens now? Do you have to say yes?”

41 Bullets and Counting…: The Voice archive on NYPD brutality.