POLICE MISCONDUCT & REMEDIES UNDER THE LAW

BY ATTORNEY OBINNA DURUJI

"When I was a kid growing up in segregated Arkansas, I rode the city bus to school. It cost a nickel. My friends and I liked to sit at the back of the bus. When the bus was crowded it was pointed out to us that black folks were supposed to sit in the back of the bus. I didn't know any better. Discrimination doesn't come naturally, it has to be taught"—President Clinton, in August, 1996.

The 6th edition of Blacks Law Dictionary defines the Police as the "branch of the government, which is charged with the preservation of public order and tranquility, the promotion of the public health, safety, and prevention, detection, and punishment of crimes".

Furthermore, the earned authors of the dictionary defined misconduct as "a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior". They went on to state that misconduct in office is "any unlawful behavior by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act".

A police officer is at all material times, therefore, a public officer within the preview of the law. By accepted civilized standards a police officer is expected to discharge his functions creditably and within the dictates of the law. A deviation from his legal responsibility would necessitate redress. It is this deviation that is termed misconduct. The facts and circumstances of police misconduct may vary in each case. It may assume the manner of discrimination. President Clinton’s statement cannot be truer for indeed, discrimination like ignorance has been taught. The 1911 edition of the Encyclopedia Britannica, under the heading "The Negro" read: mentally the Negro is inferior to the white." Various pseudo-Darwinian explanations were offered for that observation, concluding with: "the arrest or even deterioration in mental development is no doubt very largely due to the fact that after puberty, sexual matters take the first place in Negro’s life and thoughts—the mental constitution of the Negro is very similar to that of a child, normally good-natured and cheerful, but subject to sudden fits of emotion and passion during which he is capable of performing acts of singular atrocity, impressionable, vain, but often exhibiting in the capacity of a servant a dog-like fidelity." Who submitted such entry? Walter Francis Wilcox, chief statistician of the United States Census Bureau. Many bigots became professors by indulging in such blatant pseudo-intellectualism.

How could it be surprising when in the summer of 1787, fifty-five people, thirty-three of whom were lawyers described the blacks as three-fifths of a human being in the original version of the U.S. constitution. Discrimination is taught because once you teach a child something, he hardly departs it when he grows up. Little wonder, policemen are not different in this all pervading anti-Negro sentiment. It can hardly be surprising why of the seventeen men killed by Los Angeles Police Department (LAPD) through choke holds, twelve of them were African Americans, __ one was a Latino and four were White.

Police brutality is about the commonest example of police misconduct. The Police arrest a lot of people against whom there is no case. They arrest on probable cause, which is a legal cloak usually used by the police even in circumstances where conviction can not be obtained. A lot of unpopular people and a lot of queer people get arrested. A lot of odd-ball folk who are simply unpopular get arrested; a lot of modern thinking kids get arrested; people who drive sport cars get arrested. But more blacks are arrested, more blacks get prosecuted, more blacks go to jail and more blacks are brutalized, maimed and killed in the course of arrests. Because blacks are at the lower end of the economic scale and the society preys on the weak. According to a 1990 study by the Sentencing Project, a Washington, D.C. – based non profit organization, "on an average day in the United States, one in every four African-American men ages 20-29 was either in prison, jail, or on probation/parole."

In 1994, 683,200 black males were incarcerated in prisons across America, up from about 25,000 in 1960. The rate of incarceration of black men in 1994 was 6,753 in very 100,000, compared with 860 in every 100,000 for white males, 435 per 100,000 for African-American females and 60 per 100,000 for white females.

It is not surprising that in the course of their duties, which includes arresting people suspected of wrong doing that police indulge in a lot of misconduct; sometimes out of over zealousness; at other times, due to bigotry, and racist attitudes ingrained in their subconscious over the years.

There are several Federal constitutional rights that a given police conduct may violate. These include:

To be actionable, a police misconduct does not have intentional. Police brutality does not require culpable mental state or willfulness. But mere negligence does not give rise to an actionable misconduct. Something less than intentional act e.g. --- recklessness or gross negligence may suffice for an actionable police misconduct. For instance, assertion of government power without regard for victim’s safety may amount to gross negligence. Recklessness or deliberate indifference is sufficient to trigger a civil rights cause of action under section 1983.

The likely defendant for police misconduct include Sate and Local officials, Local government entities, individual officers acting under color of State Law, municipalities and their officials. Acting under color of law simply means that the police officer’s actions, must be authorized under state law; For example, using authority to deprive a person of their federal rights.

As a general rule, Federal rights under section 1983 litigation are personal to the injured party. Thus, one person cannot usually bring an action based on the rights of another.

However, there are exceptions when a special relationship exists between the victim and the third party, or when mental handicap prevents the victim from asserting his own rights or in the case of organizations if there is sufficient injury either to the organization itself or it’s members if the relief sought will inure to the benefit of those injured. In the absence of any injury to itself, the organization may have standing solely as the representative of its membership.

Remedies in this type of suit include compensatory and punitive damages. The remedies can also be equitable in nature namely: mandatory and prohibitory injunctions. Attorney’s fees are recoverable in a local police misconduct suit by the successful litigants under the Civil Rights Attorney’s Fee Award Act, codified as amendment to 42 USC 1988.

It should be noted that punitive damages for police misconduct are recoverable as far as violation of prisoner’s rights, and racial discrimination are concerned, but not against municipal bodies, state or state agencies.

A police officer can claim qualified good faith immunity when there was probable cause for his or her conduct. Generally, the state cannot be sued because it enjoys sovereign immunity as provided for in the Eleventh Amendment of the U.S. Constitution. Municipality immunity is not protected by the Eleventh Amendment and Municipalities can be sued for monetary, declaratory and injunctive relief’s for their policies and their customs. They have no good faith defense. The victim of a police misconduct does not need to exhaust any administrative remedies before going to federal court.

Civil rights action under section 1983 is a private personal injury action for any person within the United States for violation of a federal right under color of law. It is a remedial cause of action. This law protects against violations of fourth, eighth and fourteenth Amendments to the United States Constitution.

Accordingly, contrary to popular opinion, police officers do over indulge, and when they do, they try to explain it away and prosecutors and judges believe them. Police overindulgence can mean choke hold and death, can mean ending up in a coma and abandoned to fate in one remote hospital. It can also mean simply being warned to be careful; all depending on who you are. Contrary to popular opinion, police officers as members of the larger society have their predilections, prejudices and perceptions which implicitly all the time and overtly sometimes, find expression in their misconduct. And because racism is still being taught, it is not likely to abate soon. A tactical approach to dealing with the police, therefore, is to cooperate with them, obey their commands, tolerate the attendant indignities and seek legal redress later. Otherwise, you may not be alive to tell your own side of the story. Not to seek redress for known egregious police conduct is to encourage future police misconduct. That makes each and every one of us a potential victim. To be fore warned is to be fore armed.

QUOTE FOR THE MONTH;

"Those who profess to favor freedom and yet deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters." ---Federal Douglas

Attorney Duruji is licensed by the Texas Supreme Court, DC Court of Appeals and the Supreme Court of Nigeria. His areas of practice includes personal injury, immigration, civil rights, international human rights, and general civil litigation.