COMMON QUESTIONS ABOUT BEING A PLAINTIFF IN A POLICE MISCONDUCT CASE

If I win damages in a lawsuit against the police, who will pay the damages?

In almost all of our cases, an insurance company or the police officer’s employer pays the judgment for the police officer. Police officers generally do not pay anything themselves. In Massachusetts, many cities and towns have insurance that covers police officers. Some of the big cities are self-insured, which means that they have set aside funds to pay judgments.

When a police officer commits misconduct while on duty, his employer usually will pay the judgment. The exception is a willful criminal violation—for example, a police officer who rapes a woman after an arrest. If the police officer acted criminally, his employer may refuse to pay a judgment against him. In a case like that, you need to be able to win a judgment against the city or town to ensure that you will be compensated for your injury.      

A civil suit does not result in discipline of a police officer. Discipline is imposed only by an internal administrative investigation. Police departments do not usually consider civil verdicts or settlements in deciding whether to conduct administrative investigations. The verdict itself has no effect on the result of an administrative disciplinary decision. However, in rare cases, internal investigations have found that officers who lied at their depositions for civil lawsuits should be fired for untruthfulness. You can read more about these rare cases at the bottom of our page about police misconduct.

If your goal is to see that a police officer is disciplined, you should file an internal administrative complaint with the police department. You can file an internal complaint and a civil suit at the same time but you should consult with your lawyer before you file the internal complaint.

In most of our cases, we work on a contingent fee basis. This means that you pay us a fee only if we win the case. Most often, our fee is a percentage of the amount you recover. In civil rights cases, the court can also award an amount for attorneys’ fees to be paid by the person you sued. These court-awarded attorneys’ fees are generally only available if we win your case after a trial. In cases where the court awards attorneys’ fees, we reduce the percentage that you pay from your recovery by the amount that will be paid by the person you sued.

We ask most clients to pay some or all of the costs of a case. These costs can be several thousand dollars. When a client cannot pay the costs immediately, we pay them, but we do expect to be reimbursed. If we are successful, you pay back the expenses from your recovery. We will discuss the likely expenses before we file the case, and we will keep you informed of large expenses as the case goes on. Typically the largest expenses are to pay for the time of expert witnesses, such as medical doctors, and to pay the costs of depositions.      

Litigation takes time. Often the court’s schedule and the complexity of the case determine how long a case will take. Civil rights cases can be filed in either state or federal court. In federal court, cases may be resolved as little as fourteen months or as long as four years after the case is filed. In state court, cases tend to take longer. Most of our cases are in federal court.

When you bring a case in court, the other side will question whether you are telling the truth. Typically, they will try to defend themselves by accusing you of lying, exaggerating, or simply trying to make money from an incident that did not happen the way you say it did. It is important for you to tell the truth, even if you fear that it does not make you look good. The police officers’ lawyers want you to stretch the truth, exaggerate, or lie so they can catch you in the lie and therefore cast doubt on your credibility.

If you claim a physical injury, the lawyers defending the police officers will be entitled to your medical records regarding treatment for the incident and for some time in the past. They will want to see whether the injury was actually caused by the incident to make sure you are not seeking compensation for an injury you had earlier. If you claim that the incident caused you to need counseling or psychological treatment, then your treatment records will be at issue and must be provided to the lawyers for the police officers. If your claim states that you simply feel upset or humiliated, then your psychiatric records will probably not have to be disclosed.

Retaliation is rare, but it does happen. Police officers are more likely to be upset if you file an internal affairs complaint than if you file a civil suit because the internal complaint could cause the officer to lose his job. Police officers are, however, also likely to know that you filed a civil suit against a fellow police officer, so if you are not following the law, they are unlikely to give you a break. Some officers will investigate you to try to find violations of law. It is very important that you follow the law.

Our firm is opposed to police brutality, not to police officers. We sue police officers for abusing their power. We are not opposed to police officers who follow the law. We have represented police officers and corrections officers in civil rights suits. Often these are cases for officers who have reported misconduct and then suffered unlawful consequences; we have also represented law enforcement officers who have been subjected to police brutality. We also lecture to groups of lawyers who represent police officers and, on occasion, to police officers.

Our office receives many more complaints about police misconduct than we can take. We are a small firm, and sometimes we are simply too busy to take on a case. We evaluate cases based on many factors, including how strong the case is for proving a violation of law, the extent of the injury, whether the case affects more than one person, the reputation of the police department, the reputation of the police officer, and the reputation of the potential client. Even though you may have a legitimate claim, we may not be able to take your case.

We can’t determine the value of your case until we collect a lot of information. We need to evaluate many factors, including medical evidence, police reports, the policies of the police department, and the credibility of witnesses. No lawyer can provide a fair opinion of the value of a case after one telephone consultation. The attitude of the police officer defendant can also be critical to determining the value of the case. Each case is different. In making a determination of what a case is worth, we consider both the chances of proving that the police officer violated the law and the extent of the harm you experienced as a result of the injury.

You may have seen cases in the news that appear similar to yours. Keep in mind that cases are in the news because the facts are unusual and often they are the most extreme cases of police misconduct. Thus the verdicts or settlements in these cases may not be the same as what you can expect from your case.

Ultimately, a jury will decide the amount of damages based on the evidence presented at a trial. Or, the defendants (or, in most cases, their employer or insurance company) may negotiate a settlement and we will work with the client to decide if the settlement amount is appropriate.

Lawyers in our firm understand criminal law because we use it in our civil rights cases. We focus on civil rights cases and let other lawyers defend criminal cases.  This is because we feel criminal defense clients could be at a disadvantage if the lawyer handling their criminal cases is known to sue police.

Earlier in his career, Howard Friedman represented clients in criminal cases. Then, as now, police officers charged clients with a “cover-up charge” to hide their abuse. Some examples of cover-up charges are assault and battery on a police officer, disturbing the peace, and disorderly conduct. When the lawyers in the district attorneys’ offices began to recognize Howard as a lawyer who brought civil rights cases for victims of police brutality, the prosecutors began to work harder to obtain convictions in his criminal cases. This is because prosecutors often mistakenly view police officers as their clients. Prosecutors also understand that if a police officer is found in a civil case to have beaten a person under arrest or to have made an arrest without probable cause, juries in criminal cases will be more likely to question the truthfulness of a police officer’s testimony. This makes it harder for a prosecutor to obtain a conviction. So prosecutors and police officers may feel they should try to obtain a conviction without concern for the merits of the criminal charge.

Additionally, there are times when a criminal defense attorney could be a witness in a civil case against a police officer. For example, if a police officer admits to punching the client in the face during a private conversation with the criminal defense attorney, that attorney would be a witness if the police officer later changed his story. (This actually happened in one of Howard’s cases years ago.)

Usually when a person has been the victim of a police beating or other misconduct, we advise the client to wait until the criminal case is over before filing an internal affairs complaint or filing a civil suit. This too is because the police officers will urge the prosecutor to try harder to obtain a conviction in an effort to protect the police officer from discipline or a civil suit.

We handle cases throughout Massachusetts. We have sued police officers or officials in over 50 towns, cities, or agencies in Massachusetts. We have sued correctional officers or private security guards in Suffolk, Plymouth, Hampshire, Franklin, Middlesex, and Dukes Counties. We have represented police officers who worked for the Boston, Melrose, Hudson and Northeastern University police departments, usually in cases against their own departments. We have also sued for misconduct by agents of the Federal Bureau of Investigations (FBI) and the Commission on Presidential Debates.

Howard Friedman has sued police officers, officials, or agencies who worked for the following cities, towns or departments: Amesbury; Amherst; Ayer; Bedford; Bellingham; Billerica; Boston; Braintree; Brockton; Brookline; Cambridge; Chelmsford; Chelsea; Cohasset; Fall River; Falmouth; Foxborough; Framingham; Franklin; Freetown; Harvard (Town of); Harvard University Police; Harwich; Haverhill; Hudson; Hull; Lawrence; Leominster; Lexington; Lowell; Lynn; Malden; Marlborough; Marshfield; Massachusetts General Hospital Police; Massachusetts State Police; MBTA Police (Transit Police); Methuen; Metropolitan District Commission; Millis; Nantucket; Natick (a settlement, not a lawsuit); New Bedford; North Andover; Peabody; Pembroke; Pittsfield; Quincy; Revere; Salem; Sandwich; Saugus; Somerville; Stoughton; South Hadley School District; Springfield; Taunton; University of Massachusetts; Waltham; Wareham; Watertown; Wellfleet (a settlement, not a lawsuit); West Bridgewater; Westport; Weymouth; Woburn; and Worcester.

Howard Friedman has sued private security guards and guards at county correctional facilities, jails and state prisons in: Dukes County; Franklin County; Hampshire County; Hampden County; Plymouth County; and Suffolk County; and prisons or jails at: Bridgewater; Greenfield; Framingham; Norfolk; Shirley (Souza-Baranowski); and Walpole.

We primarily handle cases in Massachusetts. Occasionally we partner with other attorneys to bring lawsuits in other states. We also consult with attorneys handling civil rights cases in other states and work with lawyers from other states on cases in Massachusetts.

Qualified Immunity is a defense that police officers often use in an effort to defeat claims of police misconduct. Qualified Immunity is complicated, but its essential concept is that a police officer is not liable for violating anyone’s rights, unless they violate a right that is “clearly established” and obvious to any reasonable officer. For more information about the history and implications of Qualified Immunity, check out this excellent cartoon by Nathan Burney.

What is a class action lawsuit?

A class action lawsuit is a lawsuit brought on behalf of a group of people who have similar claims. All of the people who had similar experiences are known as class members. One lawsuit resolves legal claims for all class members.

Many of the class action lawsuits brought by the Law Offices of Howard Friedman allege violations of the Fourth Amendment, which protects people from unreasonable searches and seizures. Our cases have challenged unconstitutional strip searches, illegal seizure of welfare cards, and illegal seizure of people under the protective custody statute, as well as other civil rights and privacy violations. We also bring class action cases on behalf of prisoners; we successfully resolved a case for prisoners were unconstitutionally denied bathroom access, and we recently brought a case alleging that male correctional officers are viewing and videotaping the strip searches of female prisoners. We sometimes work with other law firms to bring consumer rights class actions, including a case against New Balance alleging false advertising of their toning shoes.

Often, lawyers will not take a case for just one person because the cost of handling the case is high compared to the amount of money one client is likely to recover. Individual class members’ claims might be too small to bring individual lawsuits. And in civil rights cases, bringing a case on behalf of a large group often increases the chance of success. The defendants can’t argue this was a unique situation when faced with hundreds or thousands of people who were treated the same way.

Class actions can be used to oppose illegal, unjust policies that affect a large group of people. For example, our case Mack v. Suffolk County alleged that for nearly a decade, the Boston Police Department sent female detainees to the Suffolk County Jail, where they were routinely and illegally strip searched. In addition to settling the case for $10 million, Suffolk County changed its policy, and the City of Boston built a lockup for female detainees. Furthermore, police training regarding strip searches was increased throughout the state, and other agencies changed their strip search policies to comply with constitutional requirements.

A benefit of class action lawsuits is that most individual class members remain anonymous. Most class members do not have to put time or energy into the lawsuit, and their names are not usually made public. This is important to class members who have privacy concerns. Often, class members do not want details about what happened to them to become public. For example, in a class action about false arrests and/or illegal strip searches, some people may not want the public to know that they were arrested or strip searched at all, even though the arrest or search were illegal.

The plaintiffs must seek court approval to have the case proceed as a class action. If the court grants approval, it will define a specific group of people as class members. Once a case has resolved (through settlement or a trial), the court will notify class members. Notice will typically be by mail as well as other postings. At this point class members typically must sign a form in order to participate. Class members can opt out of the lawsuit if they choose.

Some class members do not realize that they are part of a class action until they receive the notice saying that the case has resolved. Other class members have followed the case closely in the news. If class members contact the attorneys who represent the class, the attorneys may update these class members when there are major developments in the case. 

Many of our civil rights cases also receive publicity. People who learn about one of our cases from the media or other sources, and who believe they might be part of the class of people whose rights were violated, should contact this office.

Every class action lawsuit needs one or more people who are willing to be Class Representatives. Class Representatives bring a class action lawsuit on behalf of themselves and others who are in a similar situation. A Class Representative must have similar claims to those of all class members.

• Act in the interest of the class. As the name suggests, a Class Representative represents an entire class of people. A Class Representative may not use a lawsuit just for his or her own benefit. Rather, the Class Representative works with the attorneys to make decisions that help the entire class.
• Understand the case. A Class Representative must be familiar with the facts of the case. A Class Representative must understand who the parties are, why the lawsuit is being brought, and what the lawsuit seeks to accomplish. The attorneys will be happy to answer any of the Class Representative’s questions. The attorneys will let the Class Representative know about any developments in the case.
• Help the attorneys prepare the case and review documents. A Class Representative must discuss the facts of the case with the attorneys so that the lawsuit is detailed, complete, and truthful. A Class Representative may be required to provide documents and answer written questions from the defendants. The attorney will give the Class Representative documents to read and review.
• Attend meetings, court, and other events. Occasionally, a Class Representative must make time to meet with the attorneys about the case. A Class Representative may have to appear and testify at a deposition (a statement under oath). A Class Representative may have to appear in court for hearings or a trial. A Class Representative may have an opportunity to be interviewed by reporters.
• Keep in contact with the attorneys. Class Representatives must be in regular and reliable contact with the attorneys. A Class Representative should provide the attorneys with all of his or her contact information, including the contact information of a family member or friend who will always know how to contact the Class Representative. A Class Representative must inform the attorneys of any change in his or her contact information. If a Class Representative cannot be contacted to participate, he or she may be replaced.
• Be publically identified with the case. In a civil rights case, a Class Representative is often the public face of the case. The Class Representative’s story will be described in the Complaint, which is a public document filed in court. While most class members keep their privacy, a Class Representative’s name is connected to the case. Often, the Class Representative will be questioned by the media. His or her story, which is described in the Complaint, will be discussed publically.

• Help change an illegal practice. People who choose to become Class Representatives in civil rights cases are people who want to help other people. They are also often people who are particularly offended at policies that violate civil rights and want to be part of making things right.
• Help others through strength in numbers. In civil rights cases, bringing a case on behalf of a large group often increases the chance of success. The defendants cannot argue this was a unique situation when faced with hundreds or thousands of people treated the same way.  The Class Representatives help all the people who were treated similarly.
• Payment for work performed. Typically, if the case is successful, the Class Representative will receive an additional payment to compensate the Class Representative for the time and effort spent on the case. In civil rights cases, there may also be compensation for the loss of privacy. Any payment must be approved by the judge as part of the settlement.

• Lack of privacy. A Class Representative is often the public face of the case. The Class Representative’s story will be described in the Complaint, which is a public document filed in court. Often, the Class Representative will be questioned by the media. His or her story will be discussed publically.
• Defense may try to attack the Class Representative’s character. When a Class Representative brings a case in court, the other side will question whether he or she is telling the truth. Typically, they will try to defend themselves by attacking the Class Representative. They will also argue that the Class Representative’s claim is not representative of the claims by class members or that he or she is otherwise not fit to serve in that role.
• Class Representatives must put in time and effort. A Class Representative must spend time working on the lawsuit. A Class Representative must be able to answer written questions from the defendants, discuss the case with the attorneys, and check factual materials for accuracy – after all, it is the client, and not the lawyer, who knows the most about what happened to him or her. A Class Representative must make time to meet with the attorneys about the case. A Class Representative may have to provide personal documents requested by the defendants, and appear and testify at a deposition, a hearing, or a trial.
• Class Representatives must be reliable. A Class Representative must be in regular and reliable contact with the attorneys. Class Representatives must provide extra contact information so that they never lose touch with the attorneys while the case is in progress. If a Class Representative is not reliable, the case could suffer.
• Fear of retaliation. Although retaliation is rare, it does happen. In cases against law enforcement officers, the officers are likely to know that a Class Representative filed a civil suit, so if he or she is not following the law, they are unlikely to give him or her a break. Some officers will investigate the Class Representative to try to find violations of law. It is very important that Class Representatives follow the law.

Before a class action is filed, the attorneys select one or more Class Representatives from among the people who initially contacted the firm about the problem that required a lawsuit. Often, the first person to contact the firm will become one of the Class Representatives. A Class Representative must have similar claims to those of all class members.

As time goes on, the attorneys can ask the court for permission to add more Class Representatives to the lawsuit. Having multiple Class Representatives can strengthen the case by reflecting the diversity of the class members’ experiences. Sometimes adding Class Representatives is necessary because the court has divided the class into subclasses. Subclasses are necessary when different groups of class members had different experiences or are in a different situation from each other. If the class is divided into subclasses, there must be a Class Representative for each subclass.

The specific circumstances of a class member and the details about his or her experience are important when considering if he or she would make a good Class Representative. The plaintiffs’ attorneys select potential Class Representatives who will be best for the class as a whole. The judge will have to rule that the people selected are appropriate class representatives.

Here are some of the class action lawsuits that the Law Offices of Howard Friedman has brought:

Unconstitutional strip searches (violations of the Fourth Amendment).

• Mack v. Suffolk County: For nearly a decade, the Boston Police Department sent female detainees to the Suffolk County Jail, where they were routinely and illegally strip searched. We reached a settlement for $10 million in damages for about 5,400 class members, along with attorney’s fees and costs. As a result of our lawsuit, Suffolk County changed its policy, and the City of Boston built a lockup for female detainees.
• Garvey v. Macdonald: At the Franklin County Jail and House of Correction, nearly 500 class members were illegally strip searched by corrections officers who had no reason to suspect they had any contraband. We negotiated a settlement of $1.16 million for damages, attorney’s fees and costs.
• Nilson v. York County: A “clothing search” procedure at the jail in York County, Maine was actually, in practice, an illegal strip search. Howard Friedman, along with co-counsel David Webbert of Augusta, Maine, reached a settlement of $3.3 million for a class of over 7,600 people.

Other violations of the Fourth Amendment’s protection from unreasonable searches and seizures.

• Ocasio v. City of Lawrence: Police officers in Lawrence, Massachusetts, illegally seized the welfare cards of a class of people. The officers were following a policy of the Mayor. The plaintiff class won a court order declaring the policy unconstitutional and ending the illegal practice.

Prisoners’ rights.

• Tyler v. Suffolk County: About 4,000 prisoners in Building 4 of Suffolk County House of Correction were unconstitutionally locked in cells with no toilets and no sinks, forcing them to urinate and defecate in bags and makeshift containers. We settled the case for $1.5 million.
• Baggett v. Ashe: At the Western Massachusetts Regional Women’s Correctional Center, male correctional officers have routinely videotaped female inmates’ naked bodies while the women are strip searched. Judge Michael A. Ponsor ruled that the jail’s policy permitting male guards to videotape female prisoners during strip searches violates the Constitution as well as basic human dignity. This case settled.

Consumers’ rights.

• Herman v. Staples: Howard Friedman was co-counsel in this suit against Staples for failing to comply with the Massachusetts item pricing law. We reached a settlement.
• Carey v. New Balance: We were local counsel in a class action against New Balance for false advertising of their toning shoes. This case settled.