Attorney Scott Campbell

Criminal Defense Attorney

Category: police liability

Can I Sue the Police?

Can I Sue the Police? This is a question I am often asked.  The answer is yes, you can sue the police.  The bigger question is whether you will be successful.

Can I Sue the Police

Can I Sue the Police?

The government puts many obstacles in the way of suing the government or a government officer.  First, in a lawsuit in State court, the government says you cannot sue for certain things.  Basically, you cannot sue the government for making a certain policy or for deciding how to spend money.  In other words, if a police officer was following written policy, he is immune.  If a city doesn’t spend enough on staffing sufficient police officers, you can’t sue them for that decision.

Then there is something known as “qualified immunity.”  This takes two forms.  First, if a police officer does certain things (such as fails to make an arrest, an escaped prisoner harms you, rendering emergency care) unless the officer was “grossly negligent.”  Second, if an officer violates your rights, but that right is not sufficiently clear in the law, he may be immune from suit.

Another obstacle, if you are suing in State court, is the requirement that you serve the officer and his department with a Notice of Claim within 180 days of the incident.  Then there are other very strict deadlines.

If you want to sue in Federal Court, qualified immunity may still apply, but the 180-day notice deadline does not apply if you are suing under Federal law.

To be successful in suing the police, you must have some significant damages (not just hurt feelings) and a clear cause of action.  If that is the case, see a lawyer immediately so you don’t miss the very strict deadlines for action.

Can I Sue the Police?

Police Are Lowering the Bar for Use of Deadly Force

Police Are Lowering the Bar for Use of Deadly Force. If you have read previous posts you will know that I was a police officer for over 25 years before becoming an attorney.  I worked in South Florida and moved to Phoenix to attend law school and eventually opened my practice here.  One thing that struck me was the widespread use of deadly force by police here.  From news reports, it seemed like police killed almost a person a week in the greater Phoenix area.  I just checked and see that the count is 37 through the first week of October 2016.

police-are-lowering-the-bar-for-use-of-deadly-force

Police Are Lowering the Bar for Use of Deadly Force

When I was in the police academy, it was hammered into our brains that we could use deadly force only when we feared for our life or the life of another.  While it was technically legal to shoot a fleeing felon, we were told it would probably get us fired and not to do it.  That was it.  Fear for life.

In my practice and in the news I often hear police say that deadly force was used because someone did something like reach into a car or not obey police commands and the officer “feared for his safety.”  That sounds reasonable on its face, but fearing for your safety is far from fearing for your life.

In my years, I feared for my “safety” or feared that I would get injured many times.  I never used deadly force.  Cops and emergency rooms become well acquainted, or at least they did.  It seems our now para-militaristic police would rather shoot someone than take a risk of getting a cut or broken bone.

Police Are Lowering the Bar for Use of Deadly Force

I see videos on the news and YouTube of police shootings that look questionable at the least.  I see police shooting people who are unarmed because they “may be reaching for a gun.”  They could also be reaching for a cell phone, their wallet, or a candy bar. Therefore, “may be reaching for a gun” just isn’t enough to be in fear for your life.  I also see police shooting people who have a gun but are just standing there with the gun pointed at the ground.  A closer call?  Yes?  A tense situation?  Very.  But we were taught that until that gun moved toward someone, don’t shoot.  Now it seems the police culture is “he has a gun, shoot him.”

The law in Arizona allows police to use deadly force “only when the peace officer reasonably believes that it is necessary to defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.”  I assume other States have identical or very similar laws.

It is a shame that the cries for ‘support of police’ and lamenting that police have ‘such a tough job’ to do is allowing police to shoot people simply because they fear for their “safety” rather than their lives.

Police Are Lowering the Bar for Use of Deadly Force

SWATing at Flies

I often interview people charged with drug offenses who were arrested by a SWAT team.  Last week, I interviewed a person who was accused of delivering one ounce of marijuana in a very public parking lot and was arrested by black and armor-clad SWAT officers who jumped out of two vans.  Overkill?  Obviously.  Why are SWAT teams used to make arrests when there is no known threat of heavily armed people?  There is a reason, and it has nothing to do with the actual arrest.

The first time I, and probably most people, became aware of SWAT teams was in 1974 when a televised attempt to arrest Patty Hearst and those who kidnapped her was seen from Los Angeles.  The group, the Symbionese Liberation Army, was known to be heavily armed and LAPD wisely used their recently formed SWAT team to raid a house.

Soon after, many very large police departments decided they needed the same firepower, equipment, and training and formed their own SWAT teams.  For these very large police agencies who would utilize such a team often enough to justify the expense, it was a wise move.  However, smaller and smaller police departments decided “hey, we’re big too – we need a SWAT team too!”

As more and more police chiefs in smaller and smaller departments convinced their cities that real bad things can happen in their city too, the cities agreed to finance, arm, and train their own officers in SWAT tactics.  Never mind that an adjacent large city would lend them a SWAT team if was needed (which it may be, every 5 or 10 years).  That would mean the smaller city did not have a “full service” police department.

Now, the inevitable happened.  The smaller cities had expensive SWAT teams that were not being used enough to justify the expense.  The police chiefs had to explain their waste of money – or show that the SWAT teams were being used.  So, they changed the rules.

Now, SWAT teams would be used to serve any search warrant, not just those where armed resistance was threatened.  Now, SWAT teams would be used to make any planned arrest.  Voila!  SWAT teams were needed and the money was wisely spent!  Smoke and mirrors.  Justifying the unjustifiable.  SWATing at flies.

The Exclusionary Rule – Half a Loaf Leaves Us Starving

In 1949 the Supreme Court of the United States announced what has become known as the “Exclusionary Rule.”  The Rule says that when police perform a search or seizure later determined by a court to be illegal, any evidence discovered as a result of that search or seizure is suppressed, or not allowed to be used as evidence in a trial.  The Rule extends to evidence discovered as a result of the illegal evidence, such as when an address book is illegally seized the contents cannot be used to find additional evidence against the owner of the address book.  This is commonly known as the Fruit of the Poisonous Tree Doctrine.

Prior to the Exclusionary Rule, the victim of an illegal search or seizure could sue the offending officer in civil court.  This was not effective because those found with something illegal do not make very sympathetic plaintiffs, and trying to put a dollar figure on damages for violating Constitutional rights is very difficult.  The Supreme Court recognized this when they created a new remedy for illegal searches and seizures – the Exclusionary Rule.

The Rule, as far as it goes, is good.  It is supposed to keep police honest in their search tactics because if they cross the legal line, all their efforts are wasted.  But does it.

There are two glaring problems with the Rule.  First, it does not stop police from crossing the line, and second it does not protect the innocent.

Those who know me or who have visited my website know that I am a retired police officer with many years spent in major crimes investigation.  I have performed thousands of searches.  I have obtained hundreds of warrants.  I know where the grey areas are.  The grey area exists when an officer does not think he has enough information to get a warrant or does not think the suspected crime is worth the time and effort to get a warrant.  He then reverts to the police saying that “there is no such thing as an illegal search, just suppressible evidence.”  This statement may seem odd to some, but to an officer who knows that he faces no legal consequences (to himself personally) the only risk is having evidence suppressed.

Let me explain further.  Many years ago when I was taking a beginning class in homicide investigation, a very experienced homicide investigator taught that we should gather all the evidence we could, in the best way we could, then leave it to the lawyers to figure out what was admissible.  This seemed like good advice – if you didn’t have the evidence in the first place, it could never be ruled admissible.  But think of the consequences of this advice.  I was being told not to worry about the legality of the search; I was being told not to worry too much about where the legal line was.  Why?  Because there were no personal consequences to me for crossing it.

More than police having little regard for the legality of their actions, what about all the illegal searches that turn up no evidence, suppressible or not?  What about the police illegally searching your car and finding nothing?  Where are the restraints there?  What are the consequences to police?  There is no chance for a civil suit to succeed and very little chance that a complaint to the police agency will go farther than a first line supervisor blowing off any complaint.

If you or I did what the police do with impunity, we would be arrested and prosecuted.  If I went into your house looking for drugs, I would be charged with burglary.  If the police go into your house without a warrant looking for drugs, the drugs – if any are found – get suppressed.  If none are found, the police attitude is “oh well.”  Why do the police get a pass?

The Exclusionary Rule is not enough.  Yes, illegally obtained evidence should be suppressed.  However, there should be some consequences to the police officer for performing an illegal search, whether evidence is found or not.  Historically, search warrants were a time-consuming thing to get.  It would literally take hours to type an affidavit and warrant, drive to meet a judge, have the judge consider the circumstances, perhaps revise the affidavit, have the judge sign the warrant, then drive back to the location of the search.  Today, officers get warrants in minutes, either through fax or even by a recorded telephone conversation with a judge.

Why then shouldn’t officers be getting pre-approval for even routine searches as a way to protect our right to be free from “unreasonable searches and seizures.”  Why shouldn’t officers who refuse to have a neutral judge determine before a search whether probable cause exists be subject to the same laws and consequences as the rest of us?  Why should police be able to root through our things for no reason, not find anything, and just walk away?

Why not prosecute police officers for searching without probable cause, just like you or I would be prosecuted?  Why not put a statutory value on our Constitutionally protected rights – a civil punishment for police officers violating our rights?

We give immunity to judges for their actions.  We give immunity to prosecutors for their actions.  With nothing beyond the Exclusionary Rule to protect us, we are giving de facto immunity to police also.  Where is the accountability for government and its agents when our Constitutional rights are violated?

Some will read this and think me radical.  I think a government whose actors do not face the same consequences for their actions as those governed is abusive and on the way to being totalitarian.  It’s not King George, it is King Government with a million princes.  We fought a revolution against one, and we are just rolling over for the other.