To Protect and Serve?

Howard Friedman wrote an article titled "To Protect and Serve?" for the December 2011 issue of Trial magazine. You can view the article by clicking here.

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To Protect and Serve?

By Howard Friedman

Cases of police abuse are numerous, but officers are rarely disciplined for their misconduct. A civil suit may be the best option for victims who want to hold offenders accountable. However, be aware that taking on the thin blue line is no easy task.

Thousands of people are victims of police misconduct each year, yet it often goes undisciplined or is even covered up. Some of the ways in which people are victimized by the police include beatings, improper use of weapons like Tasers, pepper spray and batons, and otherwise using more force than is reasonably necessary, as well as false arrests, illegal strip searches, and improper investigations leading to wrongful convictions. In use of force cases, often something takes place before force is used which the police officer views as disrespectful. This could be refusing to stop, recording an arrest with a cell phone, asking for an officer’s badge number, verbally criticizing the police officer’s actions, swearing at the police officers, or otherwise questioning police authority. Police misconduct often goes undisciplined because of the “code of silence,” an unwritten rule that officers do not report misconduct or testify against their fellow officers. Officers’ words will be accepted over the word of an arrestee, thus providing an inventive to cover up misconduct by bring false criminal charges.

Victims of police abuse may suffer physical and emotional injuries along with lost income, medical expenses, legal bills, and other costs. They deserve justice, and the officers who hurt them deserve to be reprimanded or convicted for their crimes. After all, if anyone other than a police officer hurt them, the offender would be charged with a crime.

Options for redress are varied. Victims can file an internal complaint, seek criminal charges, file a civil suit, or contact the press. For several reasons, a civil suit may be their best option for ensuring that the police misconduct is brought to light.

It is typical for a victim to be arrested and charged with a crime in connection with the event in which they were allegedly abused. This is because police officers know if the person complaining is facing criminal charges it will reduce his or her credibility. Lawyers in the criminal courts refer to these as “cover charges” because they are often brought to cover for the officer’s misconduct. Among these charges are disturbing the peace, disorderly conduct, and resisting arrest, along with assault and battery on a police officer. This practice often intimidates victims of police misconduct from filing a complaint because they fear further retaliation. If criminal charges are pending when a client first contacts you, successfully resolving them is the first step. Before bringing a civil lawsuit, you should consult with your client’s criminal defense attorney; interfering with the criminal case can have adverse consequences.

When a client files an internal complaint or threatens to sue a police officer, the prosecutor may be disinclined to offer a favorable plea and more likely to fully prepare the criminal case.  Prosecutors work so closely with police officers that they often view them as their clients.[i] This is due to the close relationship that develops between police officers and prosecutors and the desire to prevent any attacks on the credibility of their police officer witnesses. It is almost always best to wait until the criminal case is resolved before filing a claim, unless a statute of limitations requires you to file suit or notice of suit.

Internal Complaints

Along with a criminal conviction, a successful internal complaint is one of the two primary means of disciplining a police officer. But pursuing an internal complaint is difficult because the police department controls the process. Your client cannot direct the department to interview witnesses and, unless a civilian review board is involved, only the officer can appeal the decision. Furthermore, police departments rarely find an officer at fault, especially for using improper force.

A Department of Justice study found that in 2002, investigators sustained just 8 percent of complaints involving use of force, while 34 percent were not sustained, 25 percent were deemed unfounded, and 23 percent resulted in being exonerated. The remaining 10 percent of complaints had an “other disposition” (for example, the complaint was withdrawn).

Still, filing an internal complaint may be helpful even if it is not sustained. The investigation can uncover evidence, such as a witness who is willing to speak to a police officer but reluctant to speak to your private investigator. Of course, this will only help if your state allows access to completed investigations. Public records laws vary widely on this point. Also, filing a complaint puts the department on notice of a problem, which could result in the city being held liable if left unaddressed.

The department also may be interested in screening out overly aggressive officers. If the officer who hurt your client has already been the subject of internal and civil complaints, the department may be more willing to take action to prevent further complaints. To assist the process you can draft the internal affairs complaint for your client. Although police departments have a form, proper procedure is to accept letter complaints. A complaint letter drafted by an attorney will have detailed facts and names and contact information for witnesses. Although police departments do not often mention it, you can arrange for your client to be interviewed in a neutral location like your office. Victims of police misconduct often feel unsafe going into a police station to complain about an officer from that department. A lawyer’s involvement will often cause the department to conduct a more thorough investigation.

However, filing a complaint might adversely affect your client’s ability to obtain compensation in a civil suit. Some departments will refuse to indemnify police officers who are fired for misconduct. Departments that are self-insured may not provide counsel for a police officer if they wish to reserve their right to refuse indemnification. This often means an additional defense attorney. This can help if that lawyer is focused on securing indemnification or it can hurt if an additional lawyer helps the defense in attacking your client.  

Criminal Complaints

Pursuing criminal charges against a police officer is also difficult. Local prosecutors take very few cases.[ii] Criminal cases against police officers are “extremely hard to win.”[iii]

Initiating criminal charges against a police officer is especially problematic when your client also faces criminal charges. Prosecutors may interpret your client’s pursuit of criminal charges as an effort to gain an advantage in his or her own criminal case. Also, because prosecutors rely on police officers, they risk losing their cooperation if they are thought to believe the word of your client over that of an officer.

In some states, such as Massachusetts, a civilian can file an application for a criminal complaint against a police officer. They are rarely granted because the clerks who make this decision work closely with police officers.  Even if the application is granted, the prosecutor is unlikely to vigorously pursue the charge.

Most successful prosecutions are brought by federal prosecutors, who take cases only if they feel they will be able to get a conviction.  Obtaining a criminal conviction against a police officer requires a high degree of proof. Factors that make a case more attractive to a federal prosecutor include objective evidence like videotape or photographs; a victim who is credible; good, impartial witnesses; a significant physical injury; or a police officer who is out of control or department that is particularly poorly managed.

Your client’s civil suit will probably be stayed if a criminal prosecution against the offending officer is pending. This means the criminal investigative materials are likely to be available for the civil suit. Also, witnesses are more inclined to cooperate with a prosecutor, resulting in better evidence for the civil case. Of course, a stay will delay your client’s ability to obtain compensation, which could be a hardship for him or her.

Although a successful criminal prosecution will make it easier to prove the officer’s liability, it could make it more difficult for your client to collect damages in his or her civil suit. State laws differ, but many police departments refuse to indemnify officers for criminal conduct, even if it was in the line of duty. Also, the officer may be in prison and out of a job, or financially strapped after having to pay for his or her criminal defense.

Even if the officer is found not guilty in his or her criminal case, a civil jury could find that the officer violated your client’s civil rights based on a preponderance of the evidence. State laws, insurance contracts, union contracts, and pressure from fellow officers and the public all push police departments toward indemnification in civil cases. The lack of a criminal conviction could be beneficial to securing compensation for the client.

Another danger of pursuing an internal complaint or criminal charge against a police officer is that the lengthy process may wear out your client. As time drags on, witnesses also may no longer be willing to participate. Clients who have testified many times may not be as effective as witnesses. The need for compensation may make the client more willing to settle on less favorable terms.

Civil Suits

Civil suits sometimes change police department policy because the department wants to avoid similar problems in the future and clarify the law for its officers, or because a civil settlement demands a policy change or further officer training. Sometimes other police departments see publicity about a suit and change their policies to avoid a similar problem in their department. Zachary W. Carter, the former United States Attorney in Brooklyn, said civil cases “are far more likely” to bring about changes in training, tactics, and policy than criminal prosecutions.[iv]

Civil suits, however, rarely cause the police officer to be disciplined, even when there is a large verdict. In my experience, the only times civil suits resulted in discipline were two cases where the police officers were caught lying in their depositions. In one case, the officer was indicted and convicted of perjury. In the other, the department took disciplinary action. If the client wants to see the police officer punished, filing an internal complaint and cooperating in the investigation are essential— even with the potential adverse effects on your client’s civil case.

There is no respondeat superior liability in civil rights cases under 42 U.S.C. §1983. Police officers are often indemnified, but this is particularly unlikely in cases where the officer was found guilty of criminal conduct against a plaintiff. Many insurance policies and state statues prohibit indemnification of a police officer for criminal conduct.  Similarly, if a department terminates an officer for his or her actions toward a plaintiff, the department may refuse indemnification.

Some states restrict indemnification if the officer acted in a manner that was malicious.[v] Other states, however, require indemnification in most circumstances.[vi] Some police unions have negotiated for indemnification. You need to know both the state law and the police department’s policy concerning indemnification of officers.

While there is no respondeat superior liability in §1983 cases, a local governmental agency is liable for actions of an employee if the plaintiff can prevail under Monell v. Department of Social Services.[vii] A Monell claim requires the plaintiff to prove that a policy or custom of the agency caused officers to violate the law; claims typically involve a failure to act on the part of the police department that led officers to feel they could violate the law with impunity.

Winning a Monell claim establishes the entity’s liability and assures payment of compensatory damages, but it does not increase the amount of damages. Proving a claim requires extensive discovery and will complicate your client’s trial. As a result, judges view these claims as wasting time so they are hostile to them. But the resulting public exposure can cause the police department to reform its procedures. Bringing a Monell claim may also be important when there is a risk of nonpayment by the individual defendants.

Police misconduct cases are hard to win because of prejudice in favor of police officers and because the law in this area is so complicated. To maximize a client’s odds of success, lawyers must carefully investigate the claim before filing suit. In addition to obtaining your client’s records under state public records statutes, you should obtain police policies, reports, logs, and the like. These are hard-fought cases. Time spent at the start will save time later on. You do not want to be surprised by facts that hurt your case after you have filed suit.

The Press

Press coverage brings public attention to police misconduct, which thrives in secrecy. Some clients will want to alert the public to their abuse by speaking to members of the press. A well-drafted complaint that tells your client’s story with facts is likely to attract press attention. Witnesses or other victims of the same officer or police department may come forward after reading or hearing about your client’s case. Attorneys may contact you with information about the police officer or the police department.

Public officials notice of press coverage. After an article in the newspaper the police chief may have to explain what happened to the Mayor or City Manager. Public outrage over police misconduct can cause changes in policies or practices to prevent further misconduct.

Although bringing public attention to the case may ultimately benefit your client, he or she should refrain from contacting the press while criminal charges are pending. Press attention for a misdemeanor charge may cause the prosecutor to work harder to secure a conviction. Reporters will investigate your client’s statements, but there is no guarantee a story will be favorable. Anything your client says can be introduced at trial as an admission or to contradict the client’s testimony. The press can be a powerful weapon, it must be used carefully.

Civil cases can result in changes to police policies, but they are not likely to result in discipline of a police officer. Your client should be advised of the avenues available to redress the harm done to him or her.

Even if the police department does not discipline the officer and the prosecutor does not bring criminal charges, your client may be comforted by knowing he or she did everything possible to hold the officer accountable. In many cases, a civil suit will be the best way to learn the truth about the incident and the only recourse likely to achieve at least some of the client’s goals.

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[i] See, Asit S. Panwala, “The Failure of Local and Federal Prosecutors to Curb Police Brutality”, 30 Fordham Urban L.J. 639 (2002-03).

[ii] Id.

[iii]  Harris, David A., The Interaction and Relationship between Prosecutors and Police Officers in the U.S., and How this Affects Police Reform Efforts (June 13, 2011). THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, Erik Luna and Marianne Wade, eds., Oxford University Press, 2011; U. of Pittsburgh Legal Studies Research Paper No. 2011-19. Available at SSRN: http://ssrn.com/abstract=1864118.

[iv] “Decision Not to Indict Officer May Seem Surprising, but Follows Pattern” William K. Rashbaum, The New York Times, February 19, 2004.

[v] See e.g. Mass. Gen. Laws ch. 258 §9 (2011); Pinshaw v. Metro. Dist. Commn., 402 Mass. 687 (1988) (prohibiting indemnification for compensatory damages when an officer’s conduct merits an award of punitive damages, even if no punitive damages were awarded).

[vi] For example, California and Illinois provide broad indemnification if the officer is acting in the scope of his or her employment. Cal. Govt. Code Ann. §825 (West 2011); 745 Ill. Comp. Stat. 10/9-102 (2010).

[vii]436 U.S. 658 (1978).

Posted with permission of Trial (December 2011) Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA^®)