From the Calibre Press Street Survival Newsline
How many times have you or fellow officers heard a subject you’re arresting yell, “You just violated my civil rights! I’m going to sue you!”
Many of these threats are shallow and never go beyond words. But others actually become reality, as you or other officers in your department may have learned firsthand. If this becomes the case, you’re now faced with the anxiety of being confronted by one of the scariest people you may ever deal with in your career--a plaintiffs’ attorney.
“Evaluating Police Misconduct Cases,” an article that appeared in “Trial” magazine, a publication read religiously by plaintiffs’ attorneys, gives interesting insight into what they are looking for in these types of cases.
Written by plaintiffs’ attorney Howard Friedman, who practices in Boston (MA), the article explains the criteria lawyers use when deciding whether to take a case against you, what pitfalls or strengths they’re looking for and what advice they may give their potential clients to better their chances of winning.
The article also gives tips that can help prepare you to bolster your defense should you ever find yourself a defendant in court.
Here are some observations and advice based on Friedman’s views as expressed in the article:
Ever feel like the odds that your department will settle with a plaintiff are higher than the chances that they will let the case go to trial in the hopes of exonerating you, regardless of how justified your actions may have been? According to the article, plaintiffs’ attorneys don’t think so and they’re not willing to risk their paycheck on those odds.
"[Police misconduct] cases are more likely to go to trial than other civil cases,” warns Friedman. “The best rule is to accept only cases you are willing to take to a jury. Accepting a case assuming it will settle could be a costly mistake.”
When you make an arrest, be sure every detail that led to your PC is included in your report. Your diligence and attention to detail can save you a ton of grief should an arrestee who claims he was falsely arrested find an attorney who is willing to sue you. “Reviewing the police report is especially important in false arrest cases,” Friedman advises attorneys, “because the issue at trial will be whether the facts known to the police officer were sufficient to establish probable cause.
Although the potential client may have been completely innocent,” he continues, “an officer may have had probable cause based on a description or an eye witness identification.” If the attorney reviewing the case finds holes in your justification for arrest, you might be in for a trip to court. But if he sees an airtight explanation of probable cause, he may shy away from the case, stopping it before it starts.
But a word of caution: Be aware that regardless of how well your PC is articulated, the possibility still exists that the case may come to life. In the true spirit of a plaintiffs’ attorney, Friedman writes, “Do not assume the facts in the [police] reports are true.”
It’s no surprise to you that most of the people you arrest aren’t considered model citizens. They may not look good, sound good or, obviously, behave well. But assuming that their rough edges will prevent an attorney from taking their case because he thinks a jury will be turned off by their client could be a big mistake.
“Often lawyers recommend rejecting a personal injury case if they do not like the client,” writes Friedman. “Do not follow this advice on police misconduct cases. Although many clients are likable, the plaintiff in a civil rights case is often a difficult person. Compliant people are not willing to stand up to an authority figure like a police officer.
“People who come into contact with the police are often not model citizens,” he continues. “Clients in these cases are often men and women with criminal records and drug or alcohol problems. But this should not be the determining factor in your case review.”
The article also gives attorneys strategizing advice they can pass off to their clients. “Potential plaintiffs should be careful to avoid being arrested again. Clients who are likely to be arrested again face the uncomfortable prospect of being in the custody of officers they have sued.
Clients can expect that officers in their town will know who they are. Clients should assume that an officer who observes them violating the law will likely arrest or charge them.”
Further, Friedman discusses the possibility of retribution, which he admits is rare. The bottom line: If the thought ever crosses your mind, erase it. Not only is it wrong, but plaintiffs’ attorneys are aware of the possibility and are keeping a close eye out for it.
“You should also advise clients of the possibility of retaliation...” he writes. “While a rational police officer will not retaliate against a plaintiff, especially while litigation is pending, unfortunately, officers who commit misconduct are not always rational.”
In Friedman’s view, plaintiffs’ attorneys are looking for “the truth” to come out in court. He advises lawyers to stay alert for clients who “feel the urge to exaggerate their injuries to influence you to take the case and to attempt to increase their damages. In [the initial interviews with potential plaintiffs] warn clients against this.
“Explain [to your client] that attorneys representing police officers want plaintiffs to exaggerate both the number of times they were struck and the amount of time this took so the attorneys can argue that this version of the incident is inconsistent with the medical records or with injury photographs. Tell clients they can ruin a good case with false information.”
If an arrestee was drunk and combative, he probably won’t admit that in court, right? Not if his attorney takes Friedman’s advise.
“Most people are reluctant to reveal facts that put them in a bad light,” he writes, “but you must encourage your client to tell the truth. For example, clients tend to downplay how much alcohol they drank before the incident. Explain that defense attorneys hope they will say they had only two beers all night although they were in a bar for four hours and witnesses saw them behaving as if they were drunk.”
In the best case scenario, Friedman’s advice to fellow plaintiffs’ attorneys might help stop an unjustified case against you from ever seeing the light of day. If you had to use force to control a drunk subject, who now claims you abused him, an attorney may refuse to take his case if the subject admits his drunkenness and his combative demeanor is made obvious, even to the lawyer.
How many times have you heard this from a struggling suspect: “I wasn’t doing anything! Why are you arresting me? I’m innocent! I haven’t done anything! Take your hands off me!” Friedman’s article points out that even plaintiffs’ attorneys know that the police don’t just walk around arresting and using force on innocent people. “Beware of clients who claim they were behaving perfectly when, for no reason, the police arrested and beat them. If there is no explanation for the offensive conduct, you may not have all the facts.” Hopefully when they get all the facts, they will refuse the case.
Some additional tidbits from the article:
Try to maintain a good relationship with the media, if possible. Plaintiffs’ attorney will be scanning past newspaper articles that reflect poorly on you. The less of those there are, the better off you’ll be.
Make sure your department honors requests for audio and video tapes pertaining to the arrest of the plaintiff. If not, you could be in for more trouble. “Some of these documents are destroyed only a few weeks after the incident,” Friedman warns attorneys. “Request that this material be preserved by sending a certified letter to the police chief stating that the tapes may be evidence in a civil suit. If a department destroys documents after receiving your request, that fact may be admissible in evidence.”
Make sure you always act within the guidelines of department policy. Friedman advises attorneys to get a copy of your department’s handbook of rules and regulations and to be on the lookout for areas where you may have strayed from them. If he finds any, you’ll hear about it in court.
Keep your stories straight. According to Friedman, one of the things plaintiffs’ attorneys are looking for are statements from police officers that contradict each other. Advise fellow officers not to fabricate in an attempt to make the defense stronger...it could come back to sting you.
Watch what you say over the radio and on your department’s phone. Plaintiffs’ attorneys will get copies of recordings of these conversations and will look for statements you made that could be damaging to you.
Hone your skills at testify in court (see Newslines Nos. 162, 165 in the Newsline archives area of our Web site, see below for directions). “Civil rights cases are more unpredictable than other cases,” writes Friedman. “The results can vary based on subjective factors, including the jury’s impression of the plaintiff and of the defendant.” The better you look and sound in court, the better chance you have of coming out on top.
As we advise in the Street Survival Seminar, above all, tell the truth. Even the smallest lie could destroy you. “Jurors start any police misconduct trial hoping officers did not violate the plaintiff’s civil rights,” Friedman writes. “This bias can help the plaintiff if the evidence reveals that jurors have misplaced their trust. A jury can understand an officer who makes a mistake, but not one who lies or covers up the truth.”
Some things Friedman advises that plaintiffs’ attorneys get their hands on:
• police incident reports, supplemental reports, use-of-force reports, injured prisoner reports, and motor vehicle citations;
• booking sheet, booking photograph;
• videotapes of the arrest and the booking and cell area;
• criminal complaint, application for complaint, and docket sheet;
• search warrant, application for search warrant, and return on search warrant;
• transcripts of motions and/or the criminal trial
• plaintiffs’ medical and criminal records;
• physical evidence (bloody clothing, marks on floor, skid marks);
• witness statements (if the incident occurred inside the station, the attorney will be looking for other arrestees who were in the building to be witnesses);
• management studies concerning the department;
• settlements in other police misconduct cases (be aware that in some states, even settlement amounts that are labeled as confidential may be available to a plaintiffs’ attorney);
• prior complaints against you and other officers in your department;
• depositions, trial transcripts, and other documents from other civil cases against the same department.
Make sure your reports and other paperwork are detailed and complete and there is as much evidence available as possible that indicates you acted justifiably.
Friedman ends with a word of hope for police officers: “If after reviewing the facts you are hesitant about bringing suit, reject the case. These cases are difficult to win.”
Good.