Beware of a time-worn ploy by plaintiffs’ attorneys that seems to be making a courtroom comeback. On more than one recent occasion, I’ve seen this legal sleight of hand trick used in trials involving lawsuits against law enforcement officers in which I’ve testified as a defense expert witness.
Here’s how it works:
The incident begins with some sort of minor police contact. Normally, the incident starts out as an ordinance violation or misdemeanor-type transgression. Unfortunately, due to the decisions and actions of the subject, this minor infraction escalates to a level of force that results in injury (sometimes tragic injury) to the subject.
Because of this, the plaintiff’s lawyer tries to twist the story, making it appear that the officer’s ultimate use-of-force was a direct response to the suspect’s initial behavior – not, as is really the case, a result of the subject’s escalation of force toward the officer.
For example, say that you respond to a loud music complaint (disturbing the peace) and confront a drunken, argumentative subject. As you attempt to deal with the situation, the subject becomes violent and ends up assaulting you. Because of the assault, you choose (and rightfully so) to use baton strikes to defend yourself. And guess what? The subject gets injured.
At trial, the subject’s attorney may seem appalled that his client was “severely injured because he was playing music too loud”— consciously ignoring the subject’s aggressive and escalating behavior – behavior and aggression that justified your force response. Can you see how this would plant an image in the minds of the jury of blatant overreaction and excessive force on your part? It is done everyday!
You need to be prepared to help prevent this kind of attempted run around of your legitimate force responses. Emphatically, without a trace of doubt, make it perfectly clear that the offender made the decision to violently resist your lawful efforts, and thus changed the nature of the contact. In short, his actions led to your response. Be sure to tie your force response to his specific behavior, not to the initial minor infraction, the one that caused you to show up in the first place.
In an effort to divert attention away from that core consideration, (the subject’s escalation of force) the plaintiff’s attorney wants to focus on the injuries his client sustained. Your defense needs to focus on the legitimacy of your initial contact and the reasonableness of your ultimate response, based upon the suspect’s increasing level of resistance or assault.
In other words, every police contact is a story that has a beginning, a middle and an end. Like most stories, the key to the ending is a direct result of what happens in the middle. Know that the middle is the part of the story that the suspect’s attorney wants to skip over. He wants to act like that part never happened. He does not want the jury to focus on the subject’s increased violent response, but instead on the relatively innocent nature of the initial incident.
Don’t get caught in these attempted run arounds. Any legitimate use-of-force is a response to a threat, and you need to keep the nature of that threat center-stage when you’re explaining force actions, especially if they are being challenged. Remember, the defense attorney’s job is to make your actions look like they were not justified.
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