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These days, even the most
ardent law enforcement loyalists find their allegiances shaken. From coast to coast, police
officers are beating and killing ordinary citizens in complete disregard to the rule of law and
the promise they made to uphold it. Every day brings new stories of police brutality, absent
prosecutors, and a judicial system where citizens are wrongfully charged and compelled to plead
guilty for crimes they never committed. The names Freddie Gray, Eric Garner, Laquan MacDonald,
and Walter Scott should be isolated cases; instead they are a cultural shorthand for police
misconduct in America:
2014, Eric Garner – choked to death on video by police for allegedly selling a single cigarette illegally on Staten Island, NY. The case settled out of court. The police officers involved were not charged and face only departmental disciplinary charges over four years later.
2014, Laquan MacDonald –17-year-old male shot 16 times from 10 feet while walking away from a police van. The Chicago police department suppressed video footage for 13 months. In a nationally followed trial, the police officer was convicted of murder.
2015, Freddie Gray – lost his life when his neck snapped during a “rough ride” in a police van in Baltimore. Charges against all six police officers were either dropped or dismissed.
2015, Walter Scott – shot 8 eight times in the back by a police officer after a traffic stop for a broken taillight. Eventually, this murder surfaced in a video and the police officer is now serving 20 years.
The list grows longer by the day. Even if you or your neighbor never look down the barrel of a police officer’s gun, do not think this epidemic does not affect you too.
Cases of horrific law enforcement violence have become routine in my practice. As I write this, I am in the initial stages of representing the estate of a young, unarmed prisoner beaten to death right before his release. In this case, at least five prison guards beat him so savagely (while others looked on) that he was virtually unrecognizable by his own mother.
Equally shocking are the thousands of people imprisoned for crimes they did not commit. These are “convicts” in name only, convicted by police lies and manufactured evidence. Since it was founded in 2004, the Connecticut Innocence Project has used DNA matching evidence to overturn wrongful convictions. The first of these was James Tillman, wrongfully imprisoned for 18 years because of evidence and identification procedures manipulated by the police. His case sparked more Innocence Project reversals across the country as use of DNA evidence has become routine. But most wrongly charged citizens are not so fortunate.
The extent of police violence, murder, fraud, perjury, and framing is well-documented in everything from scholarly studies to social media. The website “Police Prosecutorial and Judicial Misconduct” documents hundreds of police misconduct cases across the country in impressive detail.
With everything we know, why can’t we stop this epidemic? The short answer is accountability. In many towns and cities, police operate like street gangs: loyal to their own code of silence and impervious to outside inquiry. Shielded by a self-created “blue wall,” public prosecutors will not pursue bad police officers. Not all police are criminals and killers—in fact, most are not. But there are far too many without a natural enemy, a prosecutor, to stop them. Case in point: Only one police officer has ever been prosecuted in Connecticut for murder despite numerous wrongful death verdicts and settlements in subsequent civil rights lawsuits.
In the absence of a prosecutor, police accountability often falls to juries. But there too, the system does not work. It is expensive, arduous work to bring a police misconduct case in federal court. The pool of civil rights lawyers is limited and even skilled ones can- not fully compete with the powerful insurance companiesand municipalities on the otherside.
As Professor Erwin Chem- erinsky writes in How the Supreme Court Protects Bad Cops, even the Supreme Court prevents intentional misconduct lawsuits against police officers by giving them immunity. A lack of organized data on the use of deadly force by police officers also contributes to low prosecution rates and judicial resistance to police accountability. Although police departments are required to keep data, by and large, they do not.
Professor Geoffrey Alpert, a leading expert witness in criminology and police procedure, and someone I have used in several trials, calls the absence of a universal database a “national scandal.” Without a statistical context for police misconduct, bad police officers escape prosecution and punishment, and it falls on the lone Plaintiff’s lawyer to be the bulwark against police corruption.
SUING THE POLICE IN CONNECTICUT
On August 20, 2011, two municipal police officers beat a 52-year-old resident of a large
Connecticut city to death with fists and batons. The citizen in this case (herein referred to as
Citizen Doe because of confidentiality imposed by the resolution in this case) was unarmed and
posed no threat of harm to anyone. He was transported by ambulance to the hospital with a
ruptured spleen and severe internal bleeding. Doctors could not save Citizen Doe and he died
less than 3 hours later.
Citizen Doe was beloved in his community. At his funeral, more than 500 people showed up to honor his life and share memories. His family retained myself and New Haven attorney John Kennedy to bring a wrongful death suit against the large city where Citizen Doe resided.
Wise trial lawyers know that there is nothing more powerful in the courtroom than the truth. There the truth trumps first impressions and smooth-talking lawyers. But speaking truth is not enough; it must be proved through hard work and tireless preparation.
In our case, this meant conducting depositions of police and witnesses; compelling production of documentary evidence with subpoenas, discovery motions, Freedom of Information requests; hiring a private investigative team to uncover witnesses and evidence; and obtaining expert witnesses.
We learned that Citizen Doe was a regular at a popular neighborhood bar. The night he died, the bar owner asked Citizen Doe to leave. He left and returned, at which point the owner called his friend, an off-duty police officer on his mobile. The off-duty officer made a dispatch call for Sergeant A and Officer B. Upon arrival, Sergeant A and Officer B chased Citizen Doe, threw him to the ground, and beat him nearly to death.
The police officers’ story was inconsistent from the start. They claimed they were dispatched to the bar because of a knife fight. When they arrived, they claimed that they followed Citizen Doe in a cruiser, got out, and seized him after he tripped and fell over a stone wall, which ruptured his spleen. They then called an ambulance because Citizen Doe appeared intoxicated.
Over the next 24 months, our exhaustive investigation revealed the true story. There was no bar fight. There was no knife. There was no accidental trip over a wall. There was no pre-existing spleen condition that caused Citizen Doe’s death.
Pre-trial testimony from over two dozen witnesses revealed no one remembering a fight and only one witness who possibly recalled seeing a knife (a buddy of the bar owner). Nor did the dispatch tapes mention a possible weap- on at the bar where the officers were headed. What did surface was the tight friendship between the bar owner and the police officer who he personally called to the scene.
More importantly, initial police reports made no mention of Citizen Doe’s knife, any search for weapons, or the use of deadly force, including baton strikes to Citizen Doe’s “red zone” (chest, head, and central torso). Nor did the officers file a required Use of Force Report.
The police officers’ initial story changed dramatically after they learned of Citizen Doe’s death. In fact, that’s when the presence of a knife was alleged, along with a hastily filed Use of Force Report. With an alleged dangerous weapon (for which he was never charged) Citizen Doe was now a threat, which purportedly justified pushing him to the ground and beating him with fists and a baton which was now fully admitted.
It came down to one eyewitness courageous enough to tell the truth, even with the threat of police retaliation. While walking with his girlfriend, he saw Citizen Doe proceeding up the Avenue leading from the bar with two police officers pursuing him on foot, not a cruiser. He saw the officers shove him to the ground and push him flat on his stomach with hands outstretched. He saw one officer dig his knee into Citizen Doe’s back while striking him repeatedly with a baton. After being handcuffed, he was brutally beaten again with batons by both officers.
Our case gave rise to thousands of pages of documentary evidence, including incident reports, personnel records, training histories, and medical files. We used expert witnesses in police standards and training, as well as emergency medicine and traumatic spleen injury. Our nationally-recognized police expert, testified that a baton strike in the “red zone” can kill, and is permissible only when an officer or third party is threatened by deadly force. He also gave compelling testimony that advancing on someone who may have a deadly weapon is at odds with standard police training and could not have happened. From where he sat, the officers rushed Citizen Doe and beat him with deadly force.
Our expert emergency medical physician testified that Citizen Doe arrived at the hospital with a splenic rupture caused by blunt force. Had the officers reported any details about his injuries, doctors would have been able to identify the source of internal bleeding and operate during the critical “golden hour” after traumatic injury. This information would have saved his life.
Citizen Doe’s “pre-existing” spleen condition was easily disproved by the City’s own medical examiner, who testified that the injury to his splenic hilar vessel was caused by traumatic blows to his abdomen. She added that in her experience, she had never seen or read of such an injury being caused by falling less than 3 feet such as over the low wall alleged by the police.
Citizen Doe’s family was not interested in a long, painful trial, and an equally arduous appeal. They agreed to a settlement. But they knew that no resolution could buy peace of mind.
In the words of the great trial lawyer Melvin Belli, the goal of every case is to get the “adequate award”. But for those lawyers fighting police misconduct, that adequate award has bigger stakes. In the words of the United States Supreme Court attorneys pros- ecuting cases under the Civil Rights Act do so as private attorneys general seeking justice.
Police death cases are some of the most difficult cases to try. Although every trial is different, you can count on juries biased in favor of the police, and plaintiff lawyers portrayed by the media as greedy and ruthless. Defense lawyers representing the insurance companies that insure City police forces turn a blind eye to lying police officers. Perjurious police testimony is so pervasive, it has a moniker: “testilying”.
The media does not help uninformed juries. Instead they push a fear driven narrative: police risk their lives and deserve a break; the accused citizen probably deserves it anyway. But citizens are the ones who employ police officers, and we have the right to expect professional conduct, even and especially when the use of deadly force is at play.
The officers involved in this case are no longer wearing the uniform. John a I take some comfort in that. And every case the city resolves is a force for departmental change.
Even though I have fought many wrongful death police cases, Citizen Doe stays close to me. He symbolizes every innocent law abiding citizen who has fallen at the hands of those sworn to protect us.
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