Federal Civil Rights Investigations. Title 42, Section 1983. Internal Affairs Investigations. Civilian Police Review Boards. Each of the above phrases can bring fear to most police officers — and they should. In today’s litigious society, with more than 1,000,000 lawyers scrambling for a slice of the settlement pie, your odds of being sued are greater than your odds of getting shot. But lately, a more disturbing trend has started to emerge. Perpetrators are filing criminal charges against officers instead of, or in addition to, civil suits.
Here — in part one of this two-part piece — we’ll take a look at these legal threats by evaluating four recent cases. In part two — appearing on April 13, right in the middle of the ILEETA Conference — we’ll discuss some strategies to combat this emerging danger.
More (and More) Frequent Cases
I recently returned from testifying in federal criminal court for an officer who was indicted for violating the civil rights of a suspect he had apprehended. Because of a disclosure agreement I had to sign when I took the case, I’m going to have to speak in very vague terms. What I can tell you is that the indictment stemmed from a relatively minor use of force during the custodial arrest of a drug smuggler. My testimony centered on active resistance and the difference between a dynamic or “active” arrest scene and a secure or “static” one.
Unfortunately, the U.S. District Court jury wasn’t very sympathetic to the defense and found the officer guilty of violating the dope smuggler’s civil rights. Taken into custody immediately after the verdict was handed down, the officer is looking at 15 years in federal prison.
This criminal trial in which I found myself wasn’t an isolated experience. Since beginning my career as a private trainer and consultant after retirement from active duty, I’ve been tapped quite a few times to review cases and provide expert testimony at trial in defense of police officers who’ve been criminally charged or indicted based on their force actions on the street. Here are a few examples I can talk about as the appeals process in each has already tolled.
Done By the Book, Charged Anyway
An officer from a large western municipal agency responded to a DV call. He did everything by the book. He waited for back up, located the suspect, and used all the proper verbal defusing techniques to calm the suspect. However, a forearm to the chest of the officer resulted in the suspect fleeing on foot, only to be caught in an outdoor stairwell leading down to a basement. In spite of the close confines of the stairwell, the officer tried to maintain a good reactionary gap. He used defusing dialogue again and even attempted empty-hand control. But the officer/subject factors were stacked against him. When the bigger, stronger, and younger gang-banger wannabe made a grab for the officer’s pistol, the cop managed to turn the muzzle toward the suspect just as the gun went off. Under pressure from an overzealous district attorney, the political powers-that-be found a way to get an indictment against the officer for second-degree murder. My testimony lasted about three hours and included officer/subject factors (as in, a hyped-up, 20-year-old suspect clocking in at 6’1” and 210 pounds versus a 43-year-old cop whose 160 pounds was contained in a 5’7” frame), close-quarters confrontations, and proper escalation of force.
In the end, the jury saw through the BS and acquitted the officer.
Cop Gets Attacked, Then Gets Charged
A few months later and 800 miles away, another case I had been sent was also scheduled for trial. Again, an up-for-reelection DA sought and obtained a murder indictment on an officer who used deadly force against a suspect during a violent assault. The attack knocked the officer to the ground, stunning him momentarily. As the suspect was trying to remove the officer’s sidearm, the officer tried his impact weapon, but because of the close confines, couldn’t use it effectively.
Punches to the cop’s head were taking their toll. Shortly before the cop felt he was about to pass out, he managed to get the muzzle of his gun out far enough to put five shots into his attacker. Apparently, those five shots shocked the local police chief who actually joined in the blood lust for the officer’s badge. However, twelve jurors didn’t see it that way. I, along with three other force trainers, presented a mini-officer survival seminar in that Midwest courtroom that afternoon while members of the press held court out in the hallway.
Two days later, the jury verdict came down acquitting the officer.
Cops Blamed for Pursuit Fatality
Four months after that, on the east coast, two officers who had been indicted for Manslaughter went to trial. This case resulted from a pursuit where it was alleged that they rammed the fleeing vehicle when one of the officers was attempting to stop it for suspected DWI. The operator and one passenger survived — both had their seatbelts on — but the third passenger perished when he was ejected from the van and it rolled over him.
The prosecution presented a picture of three innocent young people just out for an evening of fun (which included throwing full beer bottles at the pursuing officers). They both refused plea bargains resulting in misdemeanor convictions (which would’ve meant decertification, termination, and probable jail time). Again, the jurors paid attention to the testimony rather than the hype. After hearing about the pursuit continuum from yours truly, along with testimony from a state police accident reconstructionist who testified that there was no evidence indicating either police car struck the van, the jury acquitted both officers.
They got their jobs and their lives back, plus two years of back pay. What couldn’t be recovered was the mental anguish both officers suffered during those two years.
Next month, we’ll talk about some of the proactive measures you might take to hopefully head off — or at least minimize — some of the stress and anguish you might face should you find yourself on that side of the legal arena, a criminal defendant.
In the meantime, stay safe!