Frequently Asked Questions - police misconduct
If you feel that your rights have been violated by police, or you've witnessed misconduct against someone else, do not panic. It's normal to be intimidated, but responding to misconduct is an essential step towards protecting yourself and your community from future police abuse.
There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.
Clip from our DVD, 10 Rules for Dealing with Police
Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.
In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc. Replay the events slowly in your head to help remember as many details as possible.
Also include witness’s names and contact information and the officers’ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.
Include only the facts that you're sure about and be very careful to avoid any inaccuracies because these can damage your credibility and undermine the entire report.
Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.
Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If you’re caught in a situation like this, you need a good police misconduct attorney immediately. Avoid attorneys who work in many different areas of the law. Click here for a list of attorneys who specialize in handling cases of police misconduct.
Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.
Whether or not you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. This type of case is often taken on contingency, meaning that you won’t have to pay any legal fees and your lawyer gets paid only if he or she wins a settlement from the police department. Do not become upset if you can’t find an attorney to take your case, simply proceed to Step 3.
Step 3: File a Police Misconduct Report
This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you weren’t charged with a crime and you’re not suing, the complaint should be filed right away.
The materials you prepared in Step 1 will form the body of your complaint. You’ll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident.
Where to file your complaint depends on your jurisdiction, but there’s usually a citizen review board or an office within the police department that accepts them. Entering “police complaint” + “(name of your town or city)” into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.
Also take note of whether there’s an official form that you’re required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.
Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it. You should also send copies to your local ACLU and NAACP chapters.
Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns won’t necessarily receive the individual attention they may deserve.
Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you don't get a response.
Entrapment is a legal defense -- like insanity or self-defense -- in which the defendant argues that police caused him/her to commit the crime. In other words, entrapment claims the police conceived the idea for the crime and provided the means, motive and or opportunity for the defendant to do the criminal act.
A famous entrapment case involved John DeLorean, the designer of the eponymous silver sports car featured in the Back to the Future Movies. At the time, DeLorean's car company was in deep financial trouble. Seizing upon this knowledge, FBI agents approached DeLorean, who had no prior criminal record. They convinced him to distribute cocaine promising that the profits would be enough to save the company.
After DeLorean's lawyers raised the entrapment defense, he was found not guilty of illegal drug trafficking.
For laypeople, the concept of entrapment is a common source of confusion. For example, a drug defendant caught in a "buy and bust" sting involving undercover officers could not successfully use the entrapment defense in court. Such a defendant could not credibly claim that he'd otherwise be unable or unwilling to buy drugs elsewhere.
There are several factors that the judge would take into account when deciding an entrapment case, including the defendant's ability to commit the act or whether or not the defendant has committed similar crimes in the past. For example, an entrapment defense might fail if the defendant committed the crime skillfully, because this shows that they know what they are doing.
Unfortunately police sometimes search you even if you refuse consent. If they find anything illegal and you're arrested, you’ll have to get a lawyer and fight it out in court.
If the officer convinces the judge that there was probable cause to search without your consent, then the evidence will be admissible in court. If your lawyer convinces the judge that there was no probable cause, then the evidence will be thrown out and your charges will be dismissed.
Clip from the DVD, 10 Rules for Dealing with Police
Every case is unique, so it’s hard for us to tell you how good your chances are in your particular case. Your attorney should be able to tell you what to expect from the judges in your area.
If you're searched illegally and nothing is found, you may consider taking legal action or at least filing a complaint. Local attorneys, as well as your local ACLU and NAACP chapters may be able to help you.
Videotaping or photographing police in public places is usually legal, so long as you don’t interfere their ability to do their job. Nonetheless, police generally don't like being watched or documented and will often respond aggressively.
Citizens are frequently arrested for videotaping police, and the charges are later dropped. Regardless, video is uniquely effective in revealing guilt and exonerating the innocent -- for both police and citizens. See examples of this here, here, here, and here.
If you're videotaping or photographing police, make sure you don’t interfere. If you're arrested, “obstruction” is the most likely charge, and you’ll want to be able to defend against it.
If you acquire video or photographic evidence of police misconduct, create and secure copies of the evidence. Then forward copies to local police monitoring groups such as civilian review boards, and local ACLU, NLG, and NAACP chapters. You should also obtain legal representation for yourself in case the police department retaliates against you.
For an excellent defense of why it should never be illegal to videotape police, click here.
