Understanding Your Rights And Police Misconduct
The United States Constitution guarantees all persons civil rights. Federal law grants private individuals whose constitutional rights have been violated by a state actor a private cause of action. One common basis for a civil rights lawsuit is the excessive use of force by police when conducting a search or arrest.
If you have been injured as a result of police misconduct, you are entitled to full and fair compensation for your injuries. When you work with experienced personal injury lawyer Arlo Walsman, you can rely on his experience and zeal to get you the justice you deserve. Call Arlo at 312-313-0035 or send him an email to schedule your free case evaluation.
Common Types of Police Misconduct
A. Excessive Force
The Fourth Amendment to the United States Constitution prohibits government officials from conducting unreasonable searches and seizures. Under the Fourth Amendment, police officers are prohibited from using excessive force when making arrests. If a police officer uses excessive force, an injured person may bring a lawsuit for the officer’s violation of their constitutional rights. The person may also file suit against other officers who witnessed the excessive force but failed to intervene to stop it.
In order to be successful in a suit against police officers for excessive force, a person must show that an officer used more force that was reasonable under the facts and circumstance of the case to effectuate an arrest or to protect the safety of officers and the public. When determining whether an officer’s use of force was reasonable, courts will generally consider three factors: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Courts have also held that a suspect’s mental illness is a factor that an officer may consider when determining what degree of force, if any, is appropriate. Courts will not look at an officer’s subjective purpose for employing force against an arrestee, but rather whether the force was reasonable under all the relevant circumstances. An officer will violate an arrestee’s Fourth Amendment rights when he uses greater force than reasonably necessary to make an arrest.
When determining whether an officer’s use of force was excessive, courts also recognize that police officers must often make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. So, courts will not judge an officer’s actions with the benefit of hindsight and will instead consider only the information the officer had available to him at the time of an arrest, and not information learned afterwards.
Types of Force. In any excessive force case, it is necessary to identify the exact amount of force used by the defendant police officer, because this represents the nature of governmental intrusion on the injured plaintiff’s rights. In this respect, officers use varying degrees of force when arresting suspects, from small shoves and pushes to more serious and harmful levels of force like tackling, punching, tasing, and using dogs to bite or restrain suspects. In rare cases, officers may also use deadly force such as chokeholds or shooting.
Examples Excessive Force. Officers may not shove, push, or assault innocent citizens absent any provocation. Officers are also prohibited from using significant force on non-resisting or passively resisting suspects. The use of deadly force where a suspect poses no immediate threat to the officer or others has also been found to be unreasonable and excessive. When dealing with cases of deadly force, courts consider whether a reasonable officer in the circumstances would have probable cause to believe that the person killed posed an immediate threat to the safety of the officers or others.
The following is a sample of applications of force by police officers that courts have held to be excessive:
- Deploying a taser in dart mode against a nonviolent misdemeanor offender in her driveway who had just been tased in dart mode, made no movement, and did not turn over when instructed to do so.
- Applying overly tight handcuffs to an arrestee who was not threatening harm to the police officer or anyone else and was not resisting arrest or attempting to flee.
- Punching a non-resisting arrestee in the ribs, breaking his ribs, and forcing him into a police car.
- Holding a gun to a nine-year-old’s head during a search of a house and threatening to pull the trigger.
- Handcuffing a suspect, then kicking him twice in the back, punching him, stepping on his face, and dragging him around by his hair.
- Shooting a woman in the legs with a baton launcher when she disregarded their orders to come out of her car.
- Fatally shooting an unarmed, fleeing burglary suspect.
B. False Arrest
Police officers may not arrest a person without a warrant or probable cause. Probable cause is a fluid concept that takes into account the common-sense judgments of police officers based on the totality of the circumstances. Probable cause to arrest a suspect will exist if at the time of the arrest, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense. However, probable cause requires more than just a suspicion of misconduct.
In Cook County and the surrounding counties, claims against police officers are often brought in federal court. The Seventh Circuit Pattern Jury Instructions contain the jury instructions that federal courts in Illinois, Indiana, and Wisconsin must use in excessive force cases. These instructions provide that in order for a plaintiff to succeed in a false arrest claim, the plaintiff must prove: (1) that the defendant arrested plaintiff; (2) that the defendant did not have probable cause to arrest the plaintiff, and (3) that the defendant acted under color of law.
A person who is employed by the government acts “under color of law” if he uses or misuses authority that he has because of his official position. A person may act under color of law even if he is violating a state or local law or policy. A jury may find that a defendant officer acted under color of law even if he acted outside his official authority.
C. Malicious Prosecution
Police officers are not allowed to maliciously prosecute people or wrongfully charge people with crimes. In order to be successful in a malicious prosecution claim, a person must show: (1) the commencement or continuance by the officer of an original judicial proceeding against the plaintiff; (2) termination of the original proceeding in the plaintiff’s favor; (3) absence of probable cause for the proceeding; (4) malice; and (5) special damages.
“Malice” is defined as the initiation of a prosecution for improper motives, such as to cover up the use of excessive force or to punish a person for constitutionally protected activity. A police officer’s malice can be inferred from the lack of probable cause to charge a suspect.
D. Negligence and Willful and Wanton Conduct
Police officers may be sued for negligence and willful and wanton conduct. Both the Illinois Supreme Court and legislature define willful and wanton conduct as “a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.”
One common basis for willful and wanton conduct claims is when the police pursue a suspect in their vehicles at high rates of speed, which then leads a collision that injures or kills bystanders.
E. Indemnification
Illinois law provides that a local or public entity, such as the City of Chicago, is directed to pay any tort judgment or settlement for compensatory damages for which it, or an employee acting within the scope of his employment, is liable. This means that if a person obtains a favorable settlement or judgment against a police officer, then the city that employs that police officer will likely have to pay the settlement or judgment on behalf of its officer.
F. Qualified Immunity
The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate a clearly established statutory or constitutional right of which a reasonable officer would have been known. This means that even if a police officer is found to have violated a person’s constitutional right, a court may dismiss that person’s lawsuit if that constitutional right was not clearly established at the time of the offending officer’s misconduct.
To determine whether an officer is entitled to qualified immunity, court consider two factors: (1) whether the facts alleged by the plaintiff constitute a violation of a constitutional right, and (2) whether that right was clearly established at the time of the officer’s misconduct.
How to File a Complaint against a Police Officer
In July 2020, the Chicago Sun Times reported that the Chicago Police received a record high of over 900 complaints of police misconduct during Black Lives Matter protests from May 26 to June 29, 2020. By comparison, 175 complaints were filed against officers during the week of the 2012 NATO summit, and only 79 complaints were filed the week after the video of Laquan McDonald’s murder was publicly released in 2015.
There are several ways to file a complaint against a Chicago police officer or supervisor, including filing a complaint with the Civilian Office of Police Accountability or the Cook County State’s Attorney’s Office.
A. Civilian Office of Police Accountability
Chicago’s Civilian Office of Police Accountability (“COPA”) investigates reports of police misconduct. Complaints may be filed through COPA’s website, or by calling the 24-hour complaint hotline at (312) 743-2672.
Once a complaint is filed, COPA will mail a letter to the complainant outlining whether COPA or the Chicago Police Department’s Bureau of Internal Affairs (“BIA”) will be in charge of investigating the report. COPA investigates allegations such as verbal abuse, death or bodily injury while in police custody, excessive force, and unlawful denial of the right to counsel. The BIA investigates allegations of criminal misconduct, operations violations, and theft of money or property.
If COPA retains the complaint, it will then contact the complainant and any witnesses. After COPA finishes its investigation, the complainant will receive a letter outlining the office’s findings. If discipline of an officer is recommended, then the case will then be reviewed by the Chicago Police Department’s Superintendent, and possibly the Chicago Police Board. At the conclusion of the review process, the complainant will receive another letter reflecting the final findings and actions taken due.
B. Cook County State’s Attorney’s Office
In July 2020, the Cook County State’s Attorney’s Office launched an online portal where residents can submit complaints of police misconduct. Examples of police misconduct that can be reported are excessive force, intimidation, and filing a false police report. Complaints received through the portal will be reviewed by the Cook County State’s Attorney’s Office, which will then determine what investigative agency to send the complaint to. The online complaint form can be found here. More information about the portal can be found here.
C. Anonymous Claims Against Police Supervisors
Persons are allowed to make anonymous complaints against police supervisors. In July 2020, the independent arbitrator presiding over contract negotiations between the City and a union of 1,500 police supervisors ruled that civilians will be able to file anonymous complaints against sergeants, lieutenants, and captains. The decision came after four years of contact talks and was praised by Mayor Lightfoot as a positive step forward.
Protestors’ Rights
A. Right to be Free from Excessive Force
As discussed above, all persons have the right to be free from excessive force at the hands of the police. Police officers may not shove, push, or assault innocent citizens absent any provocation.
B. First Amendment Right to Record the Police
The free speech clause of the First Amendment grants persons the right to film police activity in public. Every federal Circuit Court of Appeals to address this issue has confirmed the existence of such a right. The filming of police activity, and the subsequent broadcasting of such films by news media, has played an important part in shaping the public’s understanding of the police and their role in our society.
C. Police Officers May Not Hide or Obscure Badges
The Chicago Police Department Directives prohibit officers from removing or obscuring their badges. If a protestor has been injured by a police officer, and does not know the identity of that officer, the person can bring a lawsuit naming the defendant officers as “John Doe.” The person can then ask the Court to order the City of Chicago to identify the at fault officer.
Social media platforms such as Facebook, YouTube, and Snapchat may also be valuable in revealing the identity of any offending police officers if videos of the protests have been posted.
How Much is my Police Misconduct Case Worth?
The value of any case, and the injured party’s monetary recovery, depends on many different factors. The most important consideration is the nature and extent of the injured party’s injuries. Other important factors include the injured party’s medical expenses, pain and suffering, and lost wages.
A. Compensatory Damages
Persons injured as a result of police misconduct are entitled to monetary compensation for their medical expenses, pain and suffering, disability or loss of normal life, emotional distress, disfigurement, and lost wages.
Medical Expenses. An injured plaintiff is entitled to recover the full amount of any medical bills, regardless of whether the injured plaintiff had health insurance that paid all or part of the bills.
Pain and Suffering, Loss of Normal Life, and Emotional Distress. These elements of damages are hard to precisely calculate, as there is no easy formula to determine the monetary value of an injured plaintiff’s pain and suffering following an accident. However, when placing on value on these types of damages, one important legal consideration is the nature, extent, and duration of the plaintiff’s injuries.
Disfigurement. If a plaintiff suffers disfigurement from police misconduct such as scars or burns, he may recover damages for the disfigurement. However, there is no easy way to calculate disfigurement damages. Generally, important considerations are the location and visibility of the scars and their size. Another consideration is whether the scars impair the plaintiff’s regular movement and function of their body, such as large scars over joints.
Lost Wages. An injured plaintiff can recover money for any wages he lost as result of his injuries from police misconduct. This includes the work that the plaintiff had to miss in order to attend doctor’s visits and other medical appointments.
Future Damages. An injured plaintiff is also entitled to recover for damages that are reasonably certain to arise in the future. For example, in the case of catastrophic injuries, a plaintiff may introduce evidence that he will need future nursing care, doctor’s visits, and medical procedures, or that he will experience continued loss of normal life due to the permanence of his injuries. A catastrophically injured plaintiff will commonly hire expert life care planners to evaluate his medical condition and testify at trial about the future medical care that he will need.
Punitive Damages. Punitive damages are available in police misconduct cases if a defendant’s conduct was willful or wanton. Both the Illinois Supreme Court and legislature define willful and wanton conduct as “a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.
What to Expect in a Police Misconduct Case
A. The Investigation
A good attorney is a skilled investigator. The first step in any civil rights or police misconduct case is for the attorney to investigate the facts of the case. This means interviewing the client and any witnesses, as well as obtaining and reviewing any relevant police reports. Police reports can be obtained through Freedom of Information Act Requests. Body worn camera footage from police officers may also be obtained with a FOIA request. The attorney must also investigate the client’s injuries by obtaining and reviewing all the client’s medical records.
Once the Arlo Law Office has investigated the facts of the case and the client’s injuries, Arlo can then send a demand letter to the government entity that employs the at-fault officers, such as the City of Chicago. The parties may then attempt to negotiate an out of court settlement. If negotiations are unsuccessful, then the Arlo Law Office can file a lawsuit against the officer and his employer.
B. The Litigation Process
The first step in the litigation process is for the plaintiff to file a complaint. The complaint contains allegations about the facts of the collision at issue and the defendant’s negligence. The plaintiff then must serve the complaint and summons on the defendant. Once the defendant has been served, his insurance company will hire a lawyer to represent him. The defendant’s attorney will then file an appearance in the case and an answer to the complaint.
Once an answer has been filed, the next step is for the parties to engage in discovery. The first phase of discovery is called written discovery, where the parties exchange and answer interrogatories and requests to produce documents. Interrogatories issued to the plaintiff will ask for information such as a description of the plaintiff’s injuries, the identity of any witnesses, and the total amount of the plaintiff’s medical bills. Interrogatories issued to the defendant will ask for information such as the identity of any defense witnesses, whether the defendant was charged with a traffic violation as a result of the collision, and the total amount of available insurance coverage. Requests to produce documents issued by the parties will ask for information such as photographs of the vehicles involved in the collision, medical records and bills, and any photographs of the plaintiff’s injuries.
When the written discovery has been answered, the parties will then engage in oral discovery, also known as depositions. At a deposition, the parties’ lawyers will take turns asking a party or witness questions about what they know about the case, such as the facts of the accident or the plaintiff’s injuries. A deposition is similar to testifying in court, because a court reporter is present and the deponent must take an oath to tell the truth, but depositions take place in an attorney’s office rather than a courtroom. The parties may also choose to depose the plaintiff’s treating physicians and any expert witnesses if either party hires an expert.
When discovery is complete, the case will be certified as “ready for trial.” The case will then be assigned a trial judge who will preside over the trial. Typically, trials for cases involving simple collisions and injuries will take one to two days, while more complicated trials with more than one defendant or catastrophic injuries may last two to three weeks.
