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Play an Active Role in Your Own Defense

Posted by Daniel Herbert Civil Rights Defense/Police Misconduct

Civil lawsuits alleging misconduct by law enforcement are nothing new; however, many things have changed, specifically with the particularized defense and the increased number of filings.

Anyone paying attention is keenly aware of the significant upsurge of new civil rights lawsuits, commonly referred to as 1983 suits, being filed in the last couple of years. Although there are numerous reasons for the uptick, perhaps none can be more telling than the mayor’s public acknowledgment of a “code of silence” within the Chicago Police Department. That comment alone has done more to fund the pockets of plaintiff’s attorneys than any comment in recent memory. With all due respect to the office of the mayor, the comments were irresponsible and misplaced. That being said, we are left to deal with the consequences and must remain committed to defending ourselves and our profession despite the unequal playing field.

The landscape has changed for law enforcement throughout the nation. Some of the changes were sorely needed and will better serve law enforcement. Others serve as little more than a feeble attempt to placate the detractors. Back in the 1990s, lawyers defending the officers involved in the Rodney King case promoted a central theme that police officers were the “good guys” who stood as the line of protection against criminals. The defense was well received at the criminal trial but less effective in subsequent civil trials. Many defense lawyers are apprehensive that the same argument will not be well received by today’s juror, who has been inundated with anti-police rhetoric.

Today, individual officers truly have their backs against the wall, more so than ever. We can either resign ourselves to this sad fate, or we can fight. Law enforcement officers must be tough to deal with the most dangerous and evil members of our society Retreat in the face of danger is not an option. Accordingly, there are several things officers can do to protect themselves should they become a defendant in a court of law. Bruce Praet, a civil rights attorney from California, published some common mistakes that law enforcement officers make that put them at a significant disadvantage in the courtroom.

The first mistake is that many officers simply do not know department policy. Unfortunately, about the only time officers pick up the policy manual is when studying for a promotion. I have had many clients who were unaware of the amount of force permitted by their department policy. Surprisingly, the majority of them believed the policy was more limiting than it actually was. Policy is usually in line with state law. With respect to use of force, state law in Illinois is relatively liberal concerning the amount of force allowed in various situations. It is imperative that every police officer know precisely what state law and department policy hold in the area of use of force.

The second failure relates to departmental and individual officer failure to keep training updated. Many departments, including Chicago’s, make e-learning classes available. Much of the subject matter discussed in these types of training become policy. Any training which an officer acknowledges as receiving puts that officer on notice and can be used to establish a willful violation of policy in some situations.

Another botch is when officers fail to review video evidence prior to giving statements. Sometimes this is out of officers’ hands, as they are unable to view (or are prevented from viewing) video. However, more and more video evidence is becoming available at the earliest stages of an investigation. Officers mistake advantage of this and view video whenever possible. Praet suggests that officers not conform their report or statement to what’s in the video, because an officer’s memory may include inaccuracies due to stress-related sensory distortions. The strongest case is to see the video and then address any discrepancies in your initial account of what happened.

Another problem occurs when officers fail to properly record witness interviews. Praet suggests using your body cam or dash cam to capture witness statements when practical. It is not uncommon for witnesses to “flip” when called to testify.

Also, Praet suggests that if a suspect is injured by police, when practical the suspect should be cleaned up before photography. If possible, let EMS clean him up before talcing pictures. As we all know, blood can exaggerate the perception of an injury and add multiple zeros to any settlement.

Another suggestion, which should be elementary but bears repeating: officers must refrain from posting on social media. The courts have consistently held that any such postings are fair game and fully admissible at trial.

Praet also suggests that officers fail to recognize the social stress of testifying in a civil trial, especially when doing so as a defendant. Many plaintiff’s attorneys are very skilled in the area of cross-examination, and it is imperative that officers know their case inside and out prior to taking the stand or sitting for a deposition.

Finally, Praet cites situations in which officers fail to frame mental-health encounters to their advantage. He suggests that when encountering a mentally ill subject, officers should not be afraid to modify their language to include references in dispatch and reports to “crazy” actions of a subject. If applicable, refer to the subject as a “possible mental-health” subject and describe the “crazy” actions over the air and in your reports. Adding in drug potential may allow your attorney to bring in toxicological results. Also, include in your report any negative past experiences or knowledge you had of the suspect as part of your state of mind. If these facts are not mentioned, it may prevent the admission of such evidence.

At the end of the day, the primary goal is self-preservation. Sadly, we can’t always assume that our attorney will save the day. We owe it to ourselves and our families to play an active role in our defense.

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