All police officers are civil investigators, we just don’t know it
The Amber Heard appeal can teach police officers a lot about civil litigation. Here’s a summary of the key lessons
The Johnny Depp and Amber Heard saga continues. The dueling defamation cases between Johnny and Amber’s original trial started in April 2016 and have yet to come to a closure. In June, the court found Amber defamed Johnny and Johnny defamed Amber. Johnny was awarded $10 million, and Amber was awarded $2 million – leaving Amber to pay Johnny $8 million.
Case closed, or so we thought, until July when Amber appealed her $10 million judgment. And a few months later, Johnny filed his own appeal which was just recorded on the second of this month.
I am happy that the courts decided to broadcast Johnny and Amber’s civil trial process so everyone can see how complicated civil litigation is. More importantly, as officers, we can see precisely where civil law intersects with criminal law and how important our investigations are.
The differences between civil and criminal law
There are a bunch of similarities and differences between the two types of law. I don’t want you to worry about each difference; instead, I want you to stop and think of where the criminal justice process intersects with the civil justice system. The point of intersection is where we need to pay attention as officers and command staff.
The purpose of civil litigation is to uphold the rights of individuals and businesses. In short, the point of civil litigation is to make the victim “whole.”
Criminal litigation is much narrower: to maintain law and order for the State. Criminal litigation is about order, punishment and rehabilitation of criminal behavior.
When officers respond to a call for service, the reason why they respond may not be apparent. If they determine an investigation is non-criminal, the officers will likely leave the scene and make a short CAD comment about what happened. That is exactly what happened when the officers responded to Amber’s penthouse.
2. Standard of proof (burden of proof)
For criminal litigation, the standard of proof is set high at beyond a reasonable doubt. On the civil side, the bar is much lower at preponderance of the evidence (some civil cases require clear and convincing).
When an officer investigates a crime, they may not have probable cause for an arrest, or they may not be able to prove the case beyond a reasonable doubt in court. If a crime happened but an officer doesn’t have probable cause to make an arrest, the officer should still write the report. Remember, other investigators and prosecutors can still use that report for the civil side.
Criminal appeals are rare and, in some cases, prohibited by the Fifth Amendment due to double jeopardy.
In the civil justice system, however, both parties can appeal. Amber appealed her judgment first, and then Johnny appealed his a few months later.
Civil trials can last a very long time
As I mentioned in What every officer should know about the Johnny Depp defamation lawsuit, civil trials can last a very long time. Let’s look at the Johnny/Amber case timeline:
- May 2016 – Police respond to Amber’s penthouse for a DV investigation.
- April 2019 – Johnny filed a defamation lawsuit against Amber.
- April 2022 – The civil trial started.
- June 2022 – The civil trial ended.
- July 2022 – Amber filed her appeal.
- Nov 2022 – Johnny field his appeal.
I know you are wondering how much longer this case can last. Now that Johnny formally submitted his appeal paperwork, the Virginal Court of Appeals has up to one year to decide. That would push the completion of the case to seven years after the police first responded to Amber’s penthouse.
Civil cases generally take an awfully long time to make their way through the court system. For example, the Myra Clark Gains litigation took almost 55 years to complete. The Sandy Hook civil lawsuit against Alex Jones finally ended in August, almost a decade after Alex made defamatory statements against the 2012 Sandy Hook shooting victims. But, just like Johnny’s case, Alex recently filed an appeal. If his appeal is granted a new trial, his case will likely not be finalized until nearly 12 years after the first incident.
Hopefully, you will not have to wait 55 years or even 12 years to complete your case. But do expect your case to last 5-7 years.
Investigating civil matters
Investigating civil matters is a hot topic for many police agencies. Last year, I was teaching a civil procedure course and one of my students, a commander from a large police agency, interjected and said, “We are cops, we don’t investigate civil matters. We only investigate criminal violations.”
As police officers, we investigate criminal matters, not civil matters. True, but here is a big catch. Almost all crimes have civil torts tied to them. Also, there are many civil matters that police are obligated to investigate: those linked to state regulations like traffic, state forfeiture laws, or municipal city codes.
The justice system is gigantic and extends far beyond just criminal law.
In the infographic below, we can see that the criminal justice system is the bullseye of our target on the left. Since we are the smallest type of law in our justice system, and many people believe we are the center of everything anyway, the bullseye is a good fit for this example. The white around the bullseye represents the rest of the justice system which is the civil justice system.
In all reality, the justice system does not look like this simple drawing. Instead, the infographic really looks like the image on the right:
Every field of the civil justice system will intersect with the criminal justice system at some point. And more than likely, the criminal justice system will intersect with multiple fields in the civil justice system. For example, fraud cases will hit corporate and business law, banking law, real estate law and criminal law.
So why is all this important? Because there is a lot more to police work than just criminal law. If we as investigators cannot prove our case beyond a reasonable doubt, it does not mean the victim is hopeless. It also does not mean the case is done. The prosecutor or victim can seek other remedies using the civil justice system and they will rely heavily on our police report for documentation of what happened. If we don’t write a police report, then they will have to rely on our short CAD notes and court testimony.
The officers in the Johnny and Amber case probably didn’t think that the case they were investigating was anything of any significant importance. They responded, there was no crime, so they left. The only difference was that they responded to celebrities instead of everyday citizens.
How often do we leave a call for service without thinking about where that case will end up? Your found property, burglary, assault with minor injuries, fraud, or accident investigations may seem insignificant to you as the criminal investigator but can prove to be the missing piece of a larger civil investigation and is likely very significant for someone else.
As officers, we should try to slow down our investigations to see the bigger picture of what we are actually doing as police officers. If you do not have enough evidence to make an arrest, ensure your investigation is concise and complete, and your report is well written so your victim is not left empty-handed.
If you ever wonder if you should write a police report on a civil matter, here is a good suggestion from my first field training officer: when in doubt, write it out.