For many civil rights or personal injury practitioners, police misconduct cases can be a little bit mystifying. These are more than typical, rudimentary government tort claims involving negligence.
The silver lining to these cases being so vehemently defended is that there is quite a bit of case law on the subject, which means that practitioners can be more assured of the cases they file. Below, you can read three tips on how to evaluate a police misconduct case.
1. Research the History
When it comes to researching the history of a police officer or department, the first place you should start is prior court cases. Often, when a misconduct case goes to trial, or even makes it to the summary judgment stage, some of the institutional evidence, or even individual testimony, could prove instrumental for your case.
Also, reaching out to the attorneys who filed those cases could prove useful, as they might have insights about the department or officers that you're considering prosecuting.
2. Research the Protocol
Standard police protocols can usually be found online. And if you compare the facts with the protocols and find that there has been a grievous derivation from what should have happened, the case probably merits a more in-depth look. While a slight failure of the protocol might not be intentional misconduct per se, the more major a failure, the more it can bolster the intentional misconduct argument.
3. Assess the Real Likelihood of Success
After reviewing the protocols and prior cases, if a case doesn't scream obvious misconduct, you may want to proceed with caution. The reason for this is due to the fact that the law is stacked heavily against plaintiffs.
The primary statute that gets used to enforce individual civil rights in this context is 42 USC 1983 premised upon a Fourth Amendment deprivation. And over the last several years, the High Court has limited the application of section 1983 and Bivens claims time and time again. Simply put, even in the obvious misconduct cases, officers are let off the hook left and right, and the institutions themselves are rarely find found liable (even when injunctive relief is sought).
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