Who Watches the Watchers?
The honest answer to the question above is this: almost no one.
The number of cases involving charges against police are vanishingly small. Because of collective bargaining agreements, terminations are rare. And because of a judicially created doctrine called qualified immunity, civil suits are very difficult to win. In short, our system does a deplorable job of holding law enforcement officials accountable. Even when they are caught shooting prone innocent people in the back on video like in the case of Oscar Grant, police rarely get convicted of the most serious offenses and civil suits over their behavior get a fraction of what other civil defendants get.
The problem of a lack of accountability has many causes, but in the context of a civil suit, the major barrier to accountability is qualified immunity. Law enforcement officers cannot be sued for wrongdoing unless they violated a clearly established constitutional right AND they did so in a way that a reasonable person would recognize as a violation. That two-part test means that when you sue the police, they are playing with a stacked deck.
Charges Almost Always Equal Immunity
Police are allowed to use force to effect an arrest. If the force is justified by law it cannot be a violation of the person’s constitutional rights. As such, the easiest way for officers to shield themselves from civil liability is to charge someone with a crime. Resisting arrest, disorderly conduct, and assaults on officers are all readily available charges that require minimal proof and no other witnesses to prove.
Charges aren’t fatal to a civil suit against the police, but they are a serious hurdle. The problem is, even if the charges themselves are weak and result in an acquittal at the criminal trial, the police can raise the same charges as a defense in a civil suit. They can claim that the difference in the standard of proof between a criminal case and a civil case results in a gap where an acquittal is possible, but their conduct is still justified.
As such, if you were charged with and convicted of a crime, all but impossible for you to prevail in a civil suit against the police.
Find a Prior
The “clearly established” part of the qualified immunity test gives rise to a chicken-and-the-egg problem. Police can only be used if they violated a clearly established constitutional right. To prove a right is clearly established, the plaintiff must be able to point to a prior case where similar behavior was held to violate a constitutional right. Obviously there is a problem with this standard—if something isn’t clearly established now, because of the need for a prior example, it cannot become clearly established in the future. While reasoning by analogy does allow “new” behavior to “count,” the effect is extremely limiting.
If you think you have a case, look around for similar cases, because, unless the behavior is obviously wrong, you will have difficulty meeting the “clearly established” part of the qualified immunity test.
Physical Over Mental
The idea that police would engage in wrongdoing is disturbing. It has a psychologically debilitating effect. After all, who do you call to protect you when the police are the ones doing the harm. That said, mental health issues, while prevalent, involve damages claims that are exceptionally hard to prove. The civil justice system does much better with physical injuries. As such, documenting physical injuries and the costs associated with mending them, is a much safer route to take when suing the police.
If you have been harmed by law enforcement and want to seek justice, call us.
Other Resources
Human Rights Watch “Systemic Police Brutality and Its Costs in the United States”