Civil Rights Violations Police Misconduct Nicholas S. Kamau, Esq. Police Misconduct 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 jury. Types of Police Misconduct Sexual Misconduct- Sexual misconduct includes sexual harassment or sexual assault, 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 attempts 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 – 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 False Arrest - 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 evidence" 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 Battery • 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 consent 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 attempt or threat to inflict injury on another person, Coupled with an apparent ability to cause the harm, Which creates a reasonable apprehension of bodily harm 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.