Bringing a Police Excessive Force Case
One of the more interesting social developments over the last decade is the increased dialogue concerning police excessive force. From Oscar Grant to Michael Brown, from Freddie Gray to the Black Lives Matter movement, it seems that nearly every week another case of alleged police abuse saturates the airwaves.
While one factor leading to the seeming increase in high-profile police abuse cases could be the expanded militarization of local police forces, the more immediate causes are likely the advent of the social media age and the proliferation of cellphone cameras. Put simply, more interactions between citizens and police are being captured, and when police use allegedly heavy-handed tactics, incidents can go viral overnight.
Notwithstanding the change in political climate, cases arising from alleged police misconduct—often termed “civil rights cases” because they are typically brought under Section 1983 of Title 42 of the United States Code for violations of constitutional rights—are some of the more difficult cases to handle.
Plaintiff’s attorneys must navigate a veritable minefield before arriving at a favorable settlement or verdict. This article will explore some of the basic preliminary steps in handling such cases.
Initial Investigation and Claim Preservation
After retaining the client—either the individual whose rights were allegedly violated, or the next-of-kin in cases of wrongful death—and conducting a thorough intake interview, the first step is to investigate the claim as completely as possible.
It is prudent to send letters to the responsible entity informing them of your representation and requesting preservation of all evidence relating to the incident. The letter serves the important function of informing the entity that your client is a represented party and that all communication to the client must be addressed to you.
In terms of preservation, it is arguable that entities such as police departments have a duty to preserve evidence immediately upon a use of force: The duty to preserve in federal and state courts is triggered when litigation is reasonably anticipated or foreseeable. However, best practices are to explicitly request preservation in writing in case, among other reasons, there is a subsequent spoliation issue.
One should also make a public records request for all evidence relating to the incident to the responsible entity, including police reports, photographs, surveillance videos, officer body camera footage, cruiser video footage, witness interviews (both written and recorded statements), internal affairs reports and all other potential evidence.
Often times, police reports can take months to be completed, and many entities refuse disclosure under the law enforcement investigatory privilege, so do not be surprised if the records request does not yield much, if anything, initially.
If any media outlets reported the incident, gather any and all available articles and videos. Sometimes these sources reveal eyewitnesses. Retain an investigator early in the case to photograph the scene and to interview any witnesses with knowledge of the incident.
For crucial witness statements, it may also be wise to have the investigator obtain signed declarations. Be aware that any witness statements may be subsequently obtained by the defense, as recent cases have held that such statements are factual in nature and are not protected by the attorney work product doctrine.
Once the initial investigation is complete and the case against the responsible party appears viable, one must be mindful of the California Government Tort Claims Act, which requires a claim to be presented within six months of the injury before filing suit.
The government claim is only necessary to preserve state claims that may eventually be brought, but it is advisable to preserve these claims, even if the suit may eventually be filed in federal court. Many entities have their own claim form, but the law only requires that a claimant submit, in writing, all the information mandated under California Government Code section 910 (time, place, circumstances of the incident, etc.).
Be aware that Section 910 prohibits stating a dollar figure if it is in excess of $10,000, so typically this field is completed by stating that the claim is in excess of the limited court jurisdiction amount.
Upon presentation of the claim, the entity has 45 days to respond in writing by either accepting or rejecting the claim. If the claim is rejected (the most common outcome), or if the entity does not act within 45 days, you may file your lawsuit.
Legal Framework for Filing Suit
Cases involving police abuse are typically brought under Section 1983 (42 U.S.C. § 1983) for the violation of your client’s federal constitutional rights. In 1976, Congress passed an amendment to Section 1983 allowing for the recovery of attorneys’ fees by a prevailing Section 1983 plaintiff, a critical change that made cases involving constitutional deprivations economically feasible that would otherwise not be.
While you can file the suit in state court since they are courts of general jurisdiction, it is often preferable to file in federal court, assuming the case meets the other subject matter jurisdiction requirement of having an amount in controversy in excess of $75,000.
Although the pleadings requirements in federal court are a bit more stringent, federal court has broader discovery standards. State privileges for withholding evidence, such as internal affairs reports, are often determined inapplicable in the federal setting, thus there are fewer fights over obtaining relevant evidence.
To withstand a motion to dismiss under the Federal Rules of Civil Procedure (FRCP 12(b)(6)), the lawsuit should set forth all the factual allegations relating to the incident. If certain facts are reasonably inferred, but not yet supported by evidence, they may be alleged upon information and belief. The suit should then delineate all the causes of action.
Most allegations of excessive force are brought under Section 1983 for violation of the client’s Fourth Amendment rights (the right to be free of unreasonable search and seizure). This cause of action must be alleged against the responsible individual state actors and cannot be brought against the entity directly.
If you have reason to believe that the incident was also the product of improper policies, procedures, training or supervision, you may also want to include a claim against the entity under Section 1983 pursuant to Monell v. Department of Social Services (1978) 436 U.S. 658. Without this cause of action, you may be precluded from conducting certain discovery, such as into officer personnel files, since this evidence would otherwise be irrelevant.
Assuming a government claim was timely filed, you should also include causes of action under California law, such as for assault, battery, false imprisonment or California Civil Code section 52.1, otherwise known as the Bane Act (a California analogue to Section 1983 that can be maintained when there is a constitutional deprivation by a state actor through threats, intimidation or coercion).
Once the lawsuit is filed, the real work begins; litigation and trial strategies for Section 1983 cases exceed the scope of this article. It bears mentioning that there are no “slam dunk” civil rights cases; even in the more egregious cases of abuse, they are defended vigorously and often involve a motion for summary judgment.
Yet like any civil case, it is critical to handle the preliminary steps flawlessly to maximize your client’s chances of success.