Civil Rights Violations

Police Misconduct

Nicholas S. Kamau, Esq.

Any improper or illegal behavior engaged in by a police officer while attempting to administer justice Types of Police Misconduct Excessive Force – The use of force that exceeds the amount of force that a police officer reasonably believes is necessary. Whether the amount of force was objectively reasonable under the circumstances is a factual issue to be determined by the . Types of Police Misconduct Sexual Misconduct- Sexual misconduct includes sexual harassment or , indecent assault, an act of indecency, possession of child pornography or other behaviors of a sexual nature which are crimes in Pennsylvania. Sexual misconduct is the second most reported form of police misconduct. Types of Police Misconduct Witness Tampering –This behavior concerns an officer who to either change a witness’ testimony, or prevents a witness from testifying in a criminal or civil proceeding. Types of Police Misconduct False confessions – Some officers convince individuals to give false confessions, convincing them to plead guilty to something they did not actually do. Types of Police Misconduct – Racial profiling is the use of someone’s race or ethnicity as a justification for suspecting him of committing a crime. For instance, assuming a man must be a terrorist because he’s Muslim, or assuming a black man driving an expensive car must have stolen it. Types of Police Misconduct - A false arrest is an arrest that is made without a warrant, or without probable cause. A person may sue on the grounds of false arrest if there was not a legitimate reason to arrest him in the first place. Scope of Problem Police killed 1,147 people in 2017. Black people were 25% of those killed despite being only 13% of the population

Policy Issues Regarding Police Killing

POLICE MISCONDUCT IN PHILADELPHIA

Over the last five years, internal investigators have sustained 1,222 complaints against officers. Of the 1,222 sustained complaints only 160 cases yielded a departmental finding of guilty.

Internal Affairs Investigations

Internal Affairs investigations are informal tribunals comprising of a three-member panel of sworn officer. Complaint allegations can be sustained or not sustained through the internal affairs investigation. Sustained findings are referred to the Police Board of Inquiry (PBI) to determine what if any disciplinary action is appropriate.

In practice, the standard of proof in disciplinary proceedings is somewhat higher than "preponderance of the " because complainants usually will not prevail without a corroborating witness. Criminal Prosecution

Crimes are considered offenses against the state, or society as a whole. Crimes are prosecuted by the state, and the prosecutor (not the victim) files the case in court as a representative of the state. A jury or judge will decide whether the prosecution has proven its case. If a the defendant is found guilty, they will face a penalty involving a loss of liberty and restitution. In order to sustain a conviction, the prosecution must prove guilt beyond a reasonable doubt. This is a very high burden. While no numerical value has been set for the level of proof, the standard requires the finder of fact to be fully convinced. Civil Cases

Wrongful, or negligent conduct causing the victim physical, economic or emotional injury are grounds for filing a lawsuit. Unlike criminal offenses, the victim, not the state files the lawsuit. A jury or judge will decide whether the plaintiff has proven their case. In a civil case the plaintiff is awarded money to compensate them for the harm they suffered.

The Plaintiff must prove that the defendant’s actions caused their injuries by a preponderance of the evidence—more likely than not. Statue of Limitations

In Pennsylvania, a victim has two years to file a lawsuit from the date of the harm. Civil Lawsuits Against Police State Court • Wrongful Death Lawsuit • Civil • Civil Assault • False Arrest • Intentional Infliction of Emotion Distress Wrongful Death

Wrongful death claims are brought against the police officer who has caused the victims death either intentionally or negligently. Wrongful death claims allow the estate of the deceased person to file a lawsuit against the party who is responsible for the death.

In order to bring a successful wrongful death cause of action, the following elements must be present:

 The death of a human being;

 Caused by another’s negligence, or with intent to cause harm;

 The survival of family members suffer as a result of the death, and;

 The appointment of a personal representative for the decedent's estate. Wrongful Death

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" to including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Determining Pecuniary Loss

Considerations include: • Age; • Earning capacity; • Life expectancy; • Health; and • Emotional and psychological loss suffered by the death Survival Actions for Personal Injury

In addition to damages for wrongful death, the personal representative may be able to recover damages for personal injury suffered by the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate. Survival Actions for Personal Injury

In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: • The degree of consciousness; • The severity of pain; • The apprehension of impending death, and • The duration of such suffering. Civil Battery

The elements to establish civil battery are generally the same as for criminal battery. According to the Restatement (Second) of Torts, the assailant doesn’t have to intend to have physical contact with his victim in order for civil battery to occur. He must merely intend to cause the imminent apprehension, or fear, of physical harm in his victim. For example, if a defendant merely intended to scare the plaintiff by swinging a baseball bat near him, but the plaintiff was accidentally hit by the bat, the plaintiff would have a case for civil battery. Civil Battery

A successful civil suit for battery will require the plaintiff to prove that the following elements were present:

 The intentional touching of, or application of force to, the body of another person,

 In a harmful or offensive manner, and

 Without the victim’s Civil Assault

Unlike battery, civil assault doesn’t require that the defendant have any physical contact with the victim. As long as the victim is placed in fear of imminent contact, no actual physical contact or injury need occur. For example, if a defendant intended to scare the plaintiff by swinging a baseball bat near him, and the plaintiff was put in fear of physical injury, the plaintiff would have a case for civil assault. Civil Assault

In a civil suit for assault, the plaintiff will have to prove that the following elements were present:

 An intentional or threat to inflict injury on another person,

 Coupled with an apparent ability to cause the harm,

 Which creates a reasonable apprehension of or offensive contact in the victim False Arrest

• False arrest is the unlawful violation of the personal liberty of another consisting of detention without sufficient legal authority. An arrest is unlawful when the police officers in question did not have probable cause to make the arrest. • An arresting officer who fails to take the arrested person before a court or magistrate within a reasonable time or without unnecessary delay is guilty of false imprisonment. • Similarly, an officer who arrests a person without a warrant is liable for false imprisonment by detaining the prisoner an unreasonable time. False Arrest

The elements necessary to make out the tort of false arrest:

 Detention or restraint against a person’s will,

 Unlawfulness of the detention or restraint (without probable cause)

 Resulting in injury or harm Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress generally involves some kind of conduct that is so terrible that it causes severe emotional trauma to the victim. In such cases, the victim can recover damages from the person causing the emotional distress.

Not all offensive conduct qualifies as intentional infliction of emotional distress. The conduct must be reprehensible. Intentional Infliction of Emotional Distress The plaintiff must prove the following elements:

 The defendant's conduct was extreme and outrageous

 The defendant acted intentionally or recklessly

 The conduct could be expected to adversely affect mental health

 The defendant's conduct caused such severe distress (and possible also bodily harm) Civil Lawsuits Against Entities and Police Federal Court The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141. The U.S. Department of Justice has jurisdiction to investigate, prosecute and file lawsuits against local municipal police departments, not individual police officers. Federal Civil Enforcement "Police Misconduct Provision" makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (42 U.S.C. § 14141). The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141.

The types of conduct covered by this law include:  excessive force,  discriminatory harassment,  false arrests,  coercive sexual conduct, and  unlawful stops, searches or arrests. The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141. In order to be covered by this law, the misconduct must constitute a "pattern or practice" • The DOJ must show that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct. • There is no private right of action under this law; only DOJ may file suit for violations. • The remedies do not provide for individual monetary relief for the victims of the misconduct. Instead they provide for injunctive relief (orders to end the misconduct, changes in policies and procedure) Deprivation of a Federal Right Title 42 U.S.C. § 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, subjects, or causes to be subjected anyone to be deprived of a constitutional right shall be liable to the party injured. Deprivation of a Federal Right Title 42 U.S.C. § 1983 Under Color of State Law • In order to establish liability under § 1983, the plaintiff must prove that he has been deprived of a constitutional right by someone acting "under color of" state law. • To act under color of state law means to engage in unlawful acts which consist of an or misuse of power, possessed only because he is an official. Deprivation of a Federal Right Title 42 U.S.C. § 1983 Excessive Use of Force The Fourth Amendment to the United States Constitution provides: • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause Excessive Use of Force

Excessive Force—The amount of force which exceeds the amount of force reasonable necessary. • The operative question in excessive force cases is “whether the totality of the circumstances justifies the particular use of force. • The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” o “Excessive force claims ... are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred. Excessive Use of Force

The Supreme Court of the United States lists several factors to examine when evaluating the reasonableness of the officer’s force which included the following: • The severity of crime at issue, • The threat of the suspect, and • The level of resistance offered by the suspect. False Arrest

A false arrest claim requires plaintiff to show that he or she was arrested without probable cause. Probable cause to arrest exists when facts and circumstances within a police officer's knowledge would convince a reasonable person that an individual has committed an offense. False Arrest

A not guilty verdict will not necessarily create a cause of action for false arrest.

• The burden of proof to sustain a conviction is a very high standard—“beyond a reasonable doubt.” The standard requires the finder of fact to be fully convinced.

• Probable cause is a relatively low standard of proof. The U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that a crime was committed. Courts vary when determining what constitutes a "fair probability": some say 30%, others 40%, others 51%.

The elements of a malicious prosecution claim are as follows:  defendant commenced a criminal proceeding;  the proceeding terminated in plaintiff's favor;  defendant “initiated the proceeding without probable cause;”  defendant acted maliciously or with a purpose apart from bringing plaintiff to justice; and  plaintiff suffered deprivation of liberty as a consequence of a legal proceeding. The “State Created Danger” Theory

The state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process.” Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006) The “State Created Danger” Theory

To prevail on a “state-created danger” theory, the plaintiff must prove the following elements: • The harm ultimately caused was foreseeable and fairly direct; • A state actor acted with a degree of culpability that shocks the conscience; • There existed some relationship between the state and the plaintiff; and • A state actor affirmatively used his or her authority in a way that created a danger to the plaintiff or that rendered him more vulnerable to danger than had the state not acted at all. Municipality Unconstitutional Policies and Customs

• A municipality may not be held liable for the acts of its employees under § 1983 unless it implements or enacted a policy or adopted a custom or practice that violates the Constitution. Monell v. New York City, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

• Upon identifying a policy or custom, a plaintiff must establish that the municipality maintained the policy or custom with “deliberate indifference” to the constitutional deprivations that the policy or custom caused. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Municipality Unconstitutional Policies and Customs

Inadequate screening

• Inadequate screening of an applicants’ background can give rise to Monell liability under § 1983 if “adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would cause the deprivation of a third party's federally protected right.

• Culpability cannot depend on the mere probability that the officer would commit a constitutional violation. It must be found that the officer was highly likely to inflict the particular injury.” Romano v. Young , F.Supp.2d, 2011 WL 346558 (E.D. Pa. 2011).