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Police Misconduct: Protesters’ Rights

by | Jul 17, 2020 | Firm News


George Floyd was killed by the Minneapolis Police on May 25, 2020. Since that time, there have been numerous Black Lives Matter protests in Chicago.  Along with the protests, there have also been a record number of complaints made against the Chicago Police.  For example, the Chicago Sun Times reported that from the time period of May 26 to June 29, 2020, there were over 900 complaints made against the Chicago Police, many of which were complaints of police using pepper spray and batons against passive, nonviolent protesters.  By comparison, there were only 175 complaints filed against officer during the week of the 2012 NATO summit in Chicago, and only 79 complaints filed in the week after the video of Laquan McDonald’s murder was publicly released in 2015.

Because of the amount of protests in Chicago, it is important for protesters to know their legal rights in the event they are victims of police misconduct.

1.  Common Claims Against Officers During Protests

A.  Excessive Force

All persons have a right to be free from excessive force by police officers. Police officers may not shove, push, or assault citizens absent any provocation.  Officers are also prohibited from using significant force on non-resisting or passively resisting suspects.

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.

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.

C.  Malicious Prosecution

Police officers are not allowed to maliciously prosecute people or wrongfully charge people with crimes.  A person will be able to bring a claim for wrongful prosecution against a police officer if he can 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. Grundhoefer v. Sorin, 2014 IL App (1st) 131276.

“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 protester for constitutionally protected free speech.  A police officer’s malice can be inferred from the lack of probable cause to charge a protester.

D.  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. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).

As the Fifth Circuit noted recently in Fields, 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. 862 F.3d at 354 (discussing the importance of George Holliday’s recording of Rodney’s King’s beating in 1991 and the subsequent broadcast of the video).

2.  Choosing a Proper Defendant and Venue

If a person’s constitutional rights were violated by the police, he can bring a lawsuit pursuant to 42 U.S.C. 1983 against any officer that violated his rights.  A person may also sue any officers that stood by and did not intervene to stop another officer’s misconduct.

One unfortunate practice of some officers that police protests is to remove their badge or obscure their badge numbers, which is expressly prohibited by the directives of the Chicago Police Department (“CPD”).  On June 11, 2020, the Chicago Reporter announced that the CPD was actively investigating over 70 complaints of officers removing or obscuring their badges during protests.  If a protester has been the victim of police misconduct but does not know the identity of the officer that harmed him, he can still file suit against the officer, naming the officer as “John Doe” in his lawsuit.  The protester’s attorney can then work with the City of Chicago to identify the officer at fault.  Many times, this can be done by reviewing videos of protests on social media platforms such as Facebook, YouTube, and Snapchat.

Finally, a person can also sue a city or county if the person can show that their rights were violated because of the city of county’s official policy or custom.

3.  Compensation for Police Officers’ Violations of Constitutional Rights

In a civil rights lawsuit, a successful plaintiff is entitled to damages for things such as:

  • Physical pain and suffering

  • Mental and emotional pain and suffering

  • Disability or loss of normal life

  • The reasonable value of property lost or destroyed

  • The reasonable value of medical care and treatment and the present cash value of medical treatment reasonably certain to be needed in the future

  • The wages that the plaintiff lost due to the false arrest as well as any wages reasonably certain to be lost in the future

Punitive damages may also be awarded if the defendant police officer’s conduct was malicious or if the officer recklessly disregarded the plaintiff’s rights. An officer’s conduct will be considered malicious if it is accompanied by ill will or spite or if it is done for the purpose of injuring the plaintiff.

Arlo Walsman