Police Misconduct: A practical guide

When we think about police misconduct, most of us think of violence and unnecessary shootings because of what’s been portrayed in the media for the past few years. The use of camera phones to record police behavior has shone a light on how many officers abuse their power and violate citizens’ civil rights. But when you consider that the police department’s main task is to protect the citizens and uphold the laws of the state, many other types of police misconduct are overlooked.

Eventually, most everyone ends up in a situation dealing with the police and the majority of these will be harmless. And while most officers do behave appropriately, some of them do not. It is important to know your rights and what to do when they are violated.

What is police misconduct?

Identifying police misconduct can sometimes be difficult, especially in high-pressure situations when tensions and emotions are high. It can take many forms, from excessive use of force to unlawful arrests to abuse in jail and prison. It refers to inappropriate or unreasonable action taken by police officers while in the performance of their duties that violates a person’s constitutional rights. While the violation of police policies should be reported so that supervisors can ensure police officers stay within the boundary lines of the police agencies involved, the violation of your constitutional rights by a law enforcement officer is significantly more serious and often requires litigation to set the record straight and seek a remedy for the harms and injustice caused. Understanding what constitutes police misconduct can help you recognize when your rights have been violated and when you need to seek action.

Different forms of police misconduct

Unlawful stop or detention in violation of the Fourth Amendment

You have the right to be free from unreasonable searches and seizures and that includes the right to be free from arbitrary police stops. The police must have a valid reason, such as a valid and articulable suspicion that a crime or traffic violation is or is soon to be committed before they can legally stop you or detain you. There are also limits to the scope of a valid detention once initiated. Police are only allowed to detain you long enough to address the reason they stopped you in the first place. And if it’s determined you did nothing illegal, you should be allowed to go on about your business. Police cannot keep you detained to try to find a new and previously unknown reason to arrest you.  And if the police are questioning you, you can always ask if you are being detained or arrested. If the answer is no, you should ask if you are free to leave, and if they say yes, you should leave immediately. You need not answer questions to leave.

Racial profiling or discrimination in violation of the Fourth or Fourteenth Amendment

Despite advancements in racial equality over the years, racism sadly still exists, and some police officers have racial biases that affect their decisions. When an officer stops, detains, searches, or arrests you based on your race, instead of having a reasonable and articulable basis to believe that you committed a crime, that is police misconduct and they are violating your civil rights. People of color experience this the most, often being pulled over or stopped on the street for no reason other than their race. It’s also a violation of your civil rights for the police to stop you because of your gender, sexual orientation, or other protected class characteristics. Officers will often provide a pretextual reason — a false reason to hide their true intentions — for an unlawful stop, detention, or search that was motivated by race. But pretextual justifications are invalid and must be challenged.

Unlawful search or seizure in violation of the Fourth Amendment

The Fourth Amendment provides citizens with the freedom from unreasonable intrusions by the government, and this includes police misconduct. This can happen when an officer searches you, your vehicle, or your home without probable cause. These types of intrusions always require that police have information amounting to probable cause to believe you committed a crime. Officers typically must have a warrant to search your vehicle or home, but there are more exceptions to this rule for vehicles than for homes. However, they don’t need a warrant when they legally arrest you, when an illegal item is in plain sight, when they make a legal traffic stop and have a valid reason to search (i.e. you appear to be intoxicated and they smell pot smoke), or when you give you consent. So, remember that if an officer asks to search you or your property, you have the right to say no. You can tell them your lawyer told you never to agree to a voluntary search.

Unlawful, false, or wrongful arrest in violation of the Fourth Amendment

An unlawful arrest is when the police physically seize and restrain you in a manner that leaves you without the reasonable belief that you can leave, without possessing sufficient legal justification. Officers need probable cause and/or a warrant based on probable cause to arrest you and take you into custody lawfully. If they act without it, they act in violation of the law and your civil rights.

Depriving you of your Fourteenth Amendment Rights without Due Process of Law

Citizens are guaranteed equal protection under the law and the government cannot deprive you of life, liberty, or property without following fair procedures, such as the right to speak, the right to certain hearings, the right to confront your accusers, the right to an attorney, and other rights that generally fall under this umbrella. These rights often must be raised in a criminal case if you are accused but can sometimes be raised in other venues and other circumstances.

First Amendment suppression and/or retaliation

The First Amendment guarantees all citizens freedom of religion, speech, the press,  to assemble or petition, and to record police officers in the performance of their public duties. If a police officer attempts to suppress your verbal expression or retaliates against you because of something you have said — so long as you weren’t threatening them or prohibiting them from doing their job — they may be violating your civil rights. Obviously, freedom of speech isn’t absolute, but simply disagreeing with an officer, calling them names, or even flipping them off is not illegal and doesn’t give them the right to stop, detain you, arrest you, or charge you with a crime. Police officers will often assert a pretextual basis for arresting or charging people in violation of their First Amendment rights, but that does not always mean officers have a proper or justifiable reason.

Malicious prosecution in violation of the Fourth and Fourteenth Amendments

A lawful prosecution requires evidence amounting to probable cause at the time charges are brought against a person. If an officer charges you with a crime as a means of harassment, to ruin your reputation, or in an attempt to justify their misconduct, they are acting in violation of your civil rights through wrongful or malicious prosecution. Similarly, police may also act in violation of your rights when they fabricate false material information in a probable cause affidavit used to justify an arrest or to seek an arrest warrant. Police officers must be truthful in these key criminal justice documents or face the consequences of police misconduct.

Excessive force

Officers must be reasonable in the force they apply so that it is used only when reasonably necessary to effectuate a lawful purpose. Force is typically acceptable when officers use it to arrest a wanted person. The force police are authorized to use to arrest can be legally increased if a wanted person flees or resists a lawfully imitated arrest, or if a wanted person threatens or obstructs an officer who is attempting to arrest them. But otherwise, officers are restricted in the amount or type of force that may be applied in any given circumstance. This includes everything from excessive shootings and physical beatings to the inappropriate or overuse of tasers, batons, chemical sprays, or K-9 units. Officer must always be justified in their choice of and use of force within the totality of the circumstances they are facing. Police officers are not legally allowed to use force to get their way or to abuse their police power.

Deadly force or jail/prison abuse in violation of the Fourth and/or Eighth Amendments

When someone dies because of excessive force or other wrongdoing by the police, detention staff, or prison guards, that is one of the worst civil rights violations that can affect a person. Whether it was on purpose or by recklessness, the officer(s) should be held accountable. Wrongful conduct can involve anything from an illegal shooting to denying someone in detention access to medical care or abusing someone in jails or prisons. If you or a loved one are seriously injured or killed because of the knowing use of significant police force or the reckless failure to protect or provide medical attention, there could be a claim against the officer for that injury.

What laws protect me from police misconduct?

The Fourth Amendment protects you from unlawful searches and seizures, while the Eighth Amendment safeguards you from cruel and unusual punishment. The Fourteenth Amendment and other Federal laws also prohibit discrimination based on race, color, national origin, sex, and religion. Furthermore, persons with disabilities are protected from discriminatory treatment under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Finally, Section 1983 of the Civil Rights Act gives you the right to file a lawsuit against a police officer if they violate your civil rights. This law was originally passed to protect citizens from government officials as well as groups like the KKK. This law makes it illegal for anyone acting under the authority of the government to deprive someone of their civil rights.

Why you need a civil rights attorney

A lawyer can play a vital role in uncovering police misconduct and pursuing justice in a police misconduct lawsuit. These types of cases are often difficult, time-consuming, and complex and very often require a specialist who is 100% committed to your rights. The Civil Rights Litigation Group has handled many successful lawsuits against the police and other jail/prison officials, and we understand the complexities of the law in Colorado. If you believe your civil rights have been violated by the police or other government officials, give us a call for a free consultation.