Race Still Focus of King Beating Case : Trial: Judge’s indication that prosecutors may have to prove white officers hit motorist because he is black would make civil rights conviction tougher, experts say.

With less than a month to go before four Los Angeles police officers are scheduled to be tried for allegedly violating Rodney G. King’s civil rights, one of the most basic issues of the federal case remains unsettled, leaving both sides to wonder what the prosecution must prove to send the defendants to jail.

In essence, the issue is whether prosecutors are required to prove that the officers, who are white, beat King because he is black.

In the indictments returned by a federal grand jury in August, the officers were not charged with acting out of racial malice, and most legal experts agree that prosecutors do not need to prove that the officers were motivated by racism. But, to the surprise of many observers, pretrial rulings by U.S. District Judge John G. Davies suggest that he expects racial motives to be proven if the officers are to be found guilty of violating King’s civil rights.

As part of a number of orders in the case, Davies has spelled out what he believes to be the five elements of the offense--each of which would be conveyed to the jury and would have to be proved to find the defendants guilty. Most are straightforward and uncontested. But the fifth that he cites is that the government must prove that the officers deprived King of his rights “on account of (his) color or race.”

If Davies sticks to that view, it will make a tough case for the government tougher, and it would dramatically increase the possibility of a second acquittal for the four defendants: Sgt. Stacey C. Koon, and Officers Laurence M. Powell, Theodore J. Briseno and Timothy E. Wind. After a Ventura County jury returned not guilty verdicts for the officers on April 29, Los Angeles plunged into rioting that left more than 50 people dead.

Alarmed by Davies’ position, prosecutors have requested that he rethink it or schedule a special hearing this week so they can try to persuade him to change his ruling.

“The United States has prosecuted a multitude of cases in which the willful use of unreasonable force by police officers was charged . . . without being required to prove racial animus,” prosecutors said in a motion filed last week with the court. “All victims are protected by the Constitution from such action, not just those who are the object of race-based animus.”

At the core of the dispute is the civil rights law that the four defendants are charged with violating. That law prohibits any government agent, including a police officer, from intentionally depriving any person of constitutionally protected rights--in this case, the rights to be secure and to be free from the intentional use of unreasonable force.

Those rights are protected under the 4th Amendment to the Constitution and are guaranteed to all citizens, regardless of their race. In a 1941 U.S. Supreme Court case known as U.S. vs. Classic, the high court ruled that anyone who intentionally deprives a person of those rights has violated the civil rights law, whether or not race was an issue.

In fact, many civil rights cases involve white victims. In 1984, California Highway Patrol Officer George Michael Gwaltney was convicted of violating the civil rights of Robin Bishop, a motorist whom prosecutors said he raped and killed. Bishop and Gwaltney were white, and his conviction was upheld on appeal.

But the civil rights law also has a second clause that refers to suspects charged with subjecting a victim to “different punishments, pains or penalties, on account of such inhabitant being an alien or by reason of his color or race.”

In his orders, Davies has quoted that phrase and suggested that because of it, the prosecution must prove that King was beaten because of his race.

Legal scholars generally disagree, and even some defense lawyers in the case are reluctant to endorse Davies’ reading of the law, as interpreted by the Supreme Court in the Classic case.

Paul DePasquale, Wind’s lawyer, said he believes that the original intent of the civil rights law was to punish defendants who attacked victims because of their race. But he acknowledges that the Classic case redefined that view. Though DePasquale believes the court was wrong, its decision in Classic has never been reversed.

“I’d like to think that the government would have to prove racial animus,” he said. “But I can’t say that it’s a slam-dunk winner for my side.”

Harland W. Braun, who represents Briseno, agreed that Davies’ view is not the commonly accepted one. But Braun said it may fit this case.

To find the officers guilty, a jury must conclude that they willfully deprived King of his rights, Braun said. And if the government does not prove that the officers beat King because he is black, then how, Braun asks, will it show that the beating was an intentional violation of his rights?

“If there’s no racial motive, then what is the motive?” Braun asked. “If it’s not race, it’s hard to imagine what it is.

“This is the quintessential racial case of the decade,” he said. “It was brought as a racial case, and it is universally perceived as a racial case--it’s even in Spike Lee’s movie (“Malcolm X”) because it’s a racial case. Now the government is trying to say it’s not.”

Prosecutors will not comment on their strategy, but other legal experts say there is a difference between being required to prove that racial animus motivated the beating and being allowed to suggest that theory in the context of proving that the officers acted willfully.

“I do not believe that to prove a violation of the 4th Amendment, even an intent to violate the 4th Amendment, that racial animus has to be shown,” said UCLA law professor Peter Arenella. “It might help the prosecution, but it’s not necessary.”

Prosecutors have hinted at another motive that has nothing to do with race: that King was disrespectful to the officers and so they pounced on him, intentionally using unreasonable force because he led them on a high-speed chase and then acted up when they tried to arrest him.

“You have a suspect who is not treating officers with the respect that they feel is due them,” said Laurie Levenson, a Loyola law school professor and former federal prosecutor. “What’s the motivation? It could be that LAPD doesn’t like suspects who talk back.”

If prosecutors choose to argue the case that way, they might still be able to introduce evidence that the attack was racially motivated--including a manuscript seized from Koon in which he describes King as a Mandingo--but they would not necessarily have to prove that point. It would merely be offered to bolster their arguments that the defendants, for whatever combination of reasons, intentionally used unreasonable force.

Defense lawyers object to that tactic, saying that it will smear the defendants with an unproven allegation of racism.

“If that’s their position, then they should have to prove it,” said Ira Salzman, who represents Koon. “Racism is the ultimate four-letter word, and they shouldn’t be allowed just to toss it out there.”

Davies could rule on the race issue based on the written briefs he has received. If he needs more information, prosecutors have requested time to argue the matter before him as part of a status conference on the case scheduled for Wednesday.