New York Injury Law Blog

A prominent African-American Harvard professor is arrested by a police sergeant in Massachusetts.   The President comments about the arrest, and the nation is riveted by the issue for the following several days.  Truth be told, people are arrested for “disorderly conduct” in every city in the nation , every day of the year.  The single most valuable statement made by the President with respect to this incident is that it offers all of us a “teachable moment”.
For those of us dealing with Police Misconduct on a daily basis, the circumstances of this case are exceedingly familiar.   Several valid points can be made with respect to this type of an arrest:
— Police will often take offense at conduct that they deem disrespectful toward themselves.  Cooperate fully, or suffer the consequences, is a widespread rule among police.
— Depending on the amount of emotion involved, and in the absence of any actual crime being committed, an officer may choose to “have the last laugh” and place the person annoying him under arrest, usually for Disorderly Conduct.  This, at the least, results in handcuffing and a visit to the police station.
—This happens to  whites, blacks and Latinos.  However, it is incontrovertible that vastly more minorities are both stopped and interrogated, leading to many more opportunities for “confrontations” to occur, which in turn leads to many more “Disorderly Conduct” arrests among minorities.
— The history of police-minority relations, especially between police and African Americans, cannot be erased from the collective memory of those who have suffered, and from their descendants who have heard the stories of their forebears’ experiences.   It stands to reason that such collective memory will influence the perceptions concerning police actions.

Police officers are vested with an enormous amount of power over individuals in society.  This is evidenced by the weapons they carry and the badge that they wear or possess.   For an officer it is sometimes  difficult to understand that the power vested in them by the state is not their’s to wield  however their whim may dictate.  On the other hand, when a police officer makes a routine inquiry, we must all understand that an officer does have the responsibility of maintaining certain order and security within our society and as members of society we should be respectful and responsive.

Problems arise when a real or perceived lack of courtesy on the part of a police officer is interpreted as a demonstration of disrespect toward the individual being approached by that officer.  Or conversely, a word, comment or question by an individual being stopped by the officer is deemed by the officer as insufficiently responsive .  All too often the exchange of just a few words escalates into a major confrontation and the consequences lead to improper actions by the police officer in response to what the police officer views as disrespect  toward himself, personally.   Arrests that, under normal circumstances would not take place, now occur.   All too often, inappropriate physical force is also applied by the police officer.  This is compounded by the fact that what was clearly an unjustified arrest is usually “covered up” by the leveling of false or improper charges.   The “victim” is now incarcerated, may suffer physical injury, and is burdened with facing criminal charges in court.

Part 1 – Keystone Kop Part 3 – Inadequate Training

What is “Police Misconduct”?

How Do We Define What Constitutes “Police Misconduct”?

There are, essentially, three categories of “Police Misconduct”.  What follows is a three part series of each of  these  categories.

Part 1 –  “Keystone Kops” Situation:

This is a situation where, through either carelessness or neglect, officers will perform legitimate  police  functions, but do so in a way that is faulty.

Perhaps the simplest example is where officers enter (or “raid”) the wrong house  or apartment.   We have actually had a case where the police, intending to execute a perfectly legal search warrant for Apartment 1A, mistakenly enter Apartment 2A.   What compounds the error is that  upon entering the “suspect” apartment, the officers perform otherwise proper police procedures upon the occupants.   In this particular instance, the occupants were a husband and wife in their 80’s, who were made to lie on the floor–and had their hands handcuffed behind their backs !!  This, after a dozen or so heavily armed police officers in full armored gear, had just invaded their apartment. When the mistake in the choice of apartment became  known, there was little the police could do to erase the fear, anxiety and sheer terror this elderly couple had experienced.

This couple sought legal assistance and was in a position to be compensated for this terrifying experience.

Part 2 Police Arrogance – Rage Part 3 – Inadequate Training

What, exactly, is “police brutality”?  When can you bring a lawsuit for “police brutality”?

It is often the case that when a person is arrested police officers use varying amounts of physical force to restrain the person arrested.  Guidelines issued to virtually all police allow different amounts of force under different situations.  Generally speaking, an arrest should be accomplished without harm, if possible, to the person arrested.  If, however, there is a “reasonable” belief that the person to be arrested is about to harm the police officer making or assisting in the arrest, or harm some bystander, or may even cause serious injury to himself, then the officer or officers can use an “appropriate” amount of force to avoid or mitigate such an outcome.

Any force used in excess of that amount of force deemed “reasonable” under the particular circumstances of a situation is called “excessive force”.  “Excessive Force” can be the basis of a lawsuit.

It is very important to realize that a person may have a valid lawsuit for “Excessive Force” even though the arrest was perfectly legal.  The issue of whether a “false arrest” was involved is a separate issue entirely!  The issue of whether there was “excessive force” used by a police officer can be considered whether or not the arrest itself is later determined to be legal.  Likewise, even if excessive force was used, that does not make an otherwise legal arrest illegal.

And who decides whether the force used in an arrest was reasonable or not, and therefore “excessive” or not?  Ultimately it is the “finder of fact” – either judge or jury, depending on the circumstances.   Often, with the availability of witnesses, or nowadays, videos, or just through the severity of the injury sustained by the person arrested, the answer as to “reasonableness” becomes clear.

This is certainly an area that requires an attorney with extensive “Police Misconduct” experience since the line between “reasonable” and “excessive” force can be a very fine distinction.