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In United States v. Koon, 833 F. Supp. 769 (CD. Cal. 1993), the district court sentenced Stacey Koon and Laurence Powell, two Los Angeles police officers, to 30 months imprisonment and two years supervised release for depriving the victim, Rodney King, of his constitutional rights under color of state law.

The 30-month sentences were substantially below the guideline range of 70 to 87 months. To reach the 30-month level the court relied on two theories of departure, one of which was the wrongful conduct of the victim. The factual context in Koon differed greatly from cases in which the departure provision previously had been applied. The Ninth Circuit found the departure unjustified and reversed. United States v. Koon, 34 F.3d 1416 (9th Cir. 1993).

Many would argue, and I agree, that the Ninth Circuit's repudiation of the sentencing court's departure in the Koon case is justified. However, the Circuit interprets too narrowly §5K2.10, which allows sentencing courts to depart from the guidelines when the victim's wrongful conduct contributes significantly to provoking the offense behavior. The Ninth Circuit's reading of §5K2.10 is not supported by the text, nor does it make sense as a policy matter. Moreover, the opinion offers little guidance on what constitutes the proper degree of departure under §5K2.10. The end result is that sentencing courts are given little discretion to use §5K2.10 to depart in other civil rights cases and possibly in cases outside that context.

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