A Primer on Civil Rights Lawsuits Against the Police
This is a primer on lawsuits against police officers for violations of civil rights. It is a work in progress. My hope is to add a new section on a regular basis until this primer becomes nearly comprehensive. But no primer can truly be comprehensive. If you think your rights were violated, CONTACT AN ATTORNEY. My number is 773 954 2608. Call me today if you want to talk to an attorney about a possible civil rights violation!
As each blog post comes out, I'll add its text here so that all of the sections can be read easily, and in order.
Introduction and Statutes of Limitations
A civil rights lawsuit is not something that ought to be attempted without an attorney. Most attorneys will tell you that nearly any brush with the law shouldn’t be handled pro se, or without an attorney; and they may be right. But civil rights are a different ball of wax altogether. This is because police officers don’t have to be right when they take an action that has the effect of depriving someone of liberty. They only have to believe they’re right based upon the circumstances as they see them; and even if a court finds that an officer violated the constitution, the court still might side with the officers if the officer incorrectly believed that they were doing the right thing (a concept called qualified immunity that I’ll try to tackle down the road).
Suing municipalities for civil rights violations nearly always means appearing in federal court, which follows its own set of rules and guidelines. Even if you have a case that is good (we call this “substance” – your case is substantively good), if you don’t follow the proper procedure, you may be out of luck no matter how badly your rights were violated.
It may be for that reason that very few really good primers exist that deal with civil rights issues having to do with police abuses of power. My tradition teaches that in a place with no leaders, try to be a leader. (Ethics of our Fathers, 2:5). So what follows is my primer on civil rights lawsuits against the police. Since I am, after all, a lawyer, the following disclaimers are important:
This is for informational purposes only. Reading this document does not create an attorney client relationship between you and me. If you read this document and attempt to go it alone based upon the information I provide, I take no responsibility for what happens to you and your case.
This document does not provide you with the knowledge or wisdom necessary to represent yourself or others in a civil rights matter. If you are a potential plaintiff – that is, if you think you have been wronged and want to sue someone – I urge you to contact a lawyer. This is as good a place as any to reiterate that I’m a lawyer. Give me a call!! If you are a lawyer hoping to use this instead of Lexis or Westlaw… don’t do that.
Everything I’m telling you here is based upon my experience as an attorney in Illinois. Many aspects of federal civil rights claims are federal in nature – they don’t change based on what state you’re in. But that isn’t universally true. Differences in state procedures in criminal prosecutions, for example, can lead to different substantive outcomes in federal civil rights cases. Statutes of limitations are governed by state law, not federal law. So if you aren’t in Illinois, realize that some of this information may not be helpful, and it may not be obvious to you what of it is helpful and what of it is not.
If there are any other disclaimers that belong here, pretend I put the here. Seriously folks, I can’t stress enough the importance of talking to a real live lawyer rather than doing internet research. I don’t bite. Call me.
Now, at some point I’ll get to theories of relief, federal statutes, and all that jazz. But one of the first questions I ask when people call me is “when did this happen?” That’s because there are statutes of limitations that apply in civil rights cases and, to the non-attorney, they make no damn sense. I’ll show you what I mean:
False Arrest: If you think you were falsely arrested, you must file a lawsuit against the officers responsible for the arrest within two years of the arrest under the federal civil rights act, and within one year of the arrest under state law. That means that if you were charged with a crime, and the case is still pending after a year and eleven months, you have a difficult decision ahead of you: whether to file a civil rights lawsuit while your criminal lawsuit is still pending.
Malicious Prosecution: Luckily, in a decision entitled Manuel v. City of Joliet, the Supreme Court recently recognized a theory of relief for constitutional deprivations arising from a malicious prosecution. What that means is that if you’re arrested and charged with a crime, there is a separate claim for the improper prosecution of you by the police. It is a different from a claim premised on a false arrest, and the courts haven’t had too many opportunities to iron the kinks out of this new theory of relief, but one thing is sure: the statute of limitations begins to run when the criminal prosecution ends, and it runs for two years. That doesn’t mean that you can ignore the statute for a false arrest claim. DO NOT DO THAT. But it does mean that there’s hope for those who wait until after they’re acquitted or for the prosecutors to dismiss a criminal action before bringing a civil rights lawsuit. Under state law, malicious prosecutions in Illinois must be brought within one year if the Defendant is a police officer.
Brutality: The statute of limitations for federal claims of police brutality is two years – and that’s true even if the criminal matter is still open for the entire two years. There’s no way around this one (well, almost no way). So if you’re assaulted by a police officer, or a police officer uses excessive force in order to make an arrest, contact an attorney right away, because your rights to sue that officer begin to run from the moment of the assault or arrest.
Protip: Notice that I keep on talking about suing the officer, and not the city or municipality. That’s because you must name the officer individually in federal civil rights lawsuits. You can’t just sue the “City of Joliet.” In many cases, a criminal defendant doesn’t know the name of the police officer who arrested him, and definitely doesn’t know the names of any officers who participated in the arrest (all of whom might be important defendants in a lawsuit).
The Supreme Court decision that defined who may be sued under the civil rights act, and for what is Monell v. N.Y. City Dep’t of Soc. Services, 436 U.S. 658 (1978). It held that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” In other words, a local government can’t be sued just because one of its employees violates your civil rights. Rather, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible.” In other words, if your civil rights were violated due to a custom and policy of the local government, then there may be a claim against the municipality. In my experience, everybody thinks their injury was due to a custom and policy, and that is rarely a correct legal assessment. So don’t rely on Monell when suing the cops. Find out who did the bad thing and name them all individually. How do you do that, you may ask? Find out, in the next exciting episode of “A Primer for Civil Rights Lawsuits Against the Police.”
How to figure out who you are suing?
Welcome to part 2 of this electrifying primer. The last section, after some legal disclaimers that you really should read, discussed statutes of limitation. It then pointed out that if you’re over what a police officer, or officers, did to you, then you have to name the cop or cops individually. It isn’t good enough just to sue the City of Calumet City (and while we’re at it, why is it called the City of Calumet City? Why not call it “Calumet City” or “City of Calumet”? I wasn’t born here, so throw me a bone).
There are ways of finding out the names of the officers responsible for an arrest. The best of those is probably the Complaint for Discovery. The Complaint for Discovery was a device cooked up by medical malpractice attorneys to deal with the fact that bringing a Complaint against doctors can be a lot like playing musical chairs. Its never clear who the doctor works for, whether the nurses and the doctor work for the same company, and whether all of the various people are independent contractors or employees, and of who. So thanks, medical malpractice attorneys! Say what you will about powerful lobbyists, I’m happy that the med mal guys were able to use their powers for good, because Complaints for Discovery are amazingly helpful.
The Illinois Statute outlining the procedures in a Complaint for Discovery can be found at 735 ILCS 5/2-402. But the main points are really simple: You file a Complaint for Discovery in the state court in whatever county the Defendants are located in (this is almost always the same county as where the violation took place). The Complaint should be labeled a Complaint for Discovery, and it should ask for the names of any possible defendant. The Respondents (that means the same thing as Defendants) in the Complaint for Discovery are the municipalities that likely employed the bad guys.
All they’re required to do is provide the names of all possible Defendants. They aren’t required to tell you what happened, or who did what. But all of the possible defendants have to be identified.
There are a few reasons that a Complaint for Discovery is better than a Freedom of Information Act request. One of them is that the statute is targeted so that Defendants can’t redact the information you need (though they can redact nearly everything else). But the biggest reason that the Complaint for Discovery blows a FOIA request out of the water is if a Respondent in a Complaint for Discovery is a proper Defendant in the lawsuit, they can be converted to a Defendant even after the Statute of Limitations runs within six months of bringing the Complaint for Discovery.
Now, realistically, this means filing a civil rights lawsuit in state court instead of in federal court. But a.) there’s nothing wrong with filing a civil rights lawsuit in state court; and b.) most Defendants in these cases raise them to federal court anyhow, so one way or the other, you'll end up in federal court (whether you like it or not).
Now, what happens when you file a Complaint for Discovery against, for example, the City of Chicago? Typically, they produce the police reports. Usually, but not all of the time, some of the information is redacted. But all of the names are there. Most of the people who are named on a police report have nothing to do with your case. But not suing someone who is a proper defendant is much worse than accidentally suing too many people. My personal common practice is to always ask for a clearer explanation of who was responsible for my client’s injury, and most municipalities’ common practice is to tell me to go fly a kite – which is their right under the statute. So I sue everybody. Unless they tell me who is a functionary in the back office and who was in the field, I’d be committing malpractice by leaving anyone out.
The shortest deposition I ever took was with a Defendant in a lawsuit of mine who was sued because his name was in the police report, and the City of Chicago refused to elaborate on his role prior to my filing suit. I asked him his name, and I tendered him a police report. I asked him why his name was in the police report. He told me it was in the police report because he was required to sign off on police reports. I asked him if he knew anything about my client and if he participated in his arrest. The officer said he did not know my client, and was not involved with his arrest. I thanked him for coming, and informed his attorneys that we’d be dismissing him as a Defendant. The whole affair took 10 minutes. Personally, I wish municipalities would offer up more information in the Complaint for Discovery stage. I’ll find it out anyhow. I’m not lazy. But they’re following the law to the letter, and I suppose I can’t blame them for that, and if they're going to do that, you need to be ready to as well.
In our next exciting episode of “A Primer on Civil Rights Lawsuits Against the Police,” we’ll discuss theories of recovery.
Theories of Recovery against police officers or municipalities for civil rights violations
This is the third installment in my Primer on Civil Rights Lawsuits Against the Police. If you haven’t read the first two installments, stop what you’re doing and read them, because this won’t be much help if you don’t know who you’re suing and are outside of the statutes of limitations (to say nothing of the fact that my disclaimers aren’t just CYA on my side, they’re important for you to know. Seriously, go read them).
If you’re suing a police officer for violating your rights (or your client's rights), you need to know what the theory of relief is. And since the lawsuit will, most likely, be in federal court, you probably need to know what a theory of relief is, and why I keep on writing things like “claims” and “theories of relief” instead of “causes of action.”
Prepare to be bored. This is civil procedure 101, a class that every law school student hates, and that most law school students forget well before they’re released upon the world. In federal civil procedure, “a complaint should limn the grievance and demand relief. It need not identify the law on which the claim rests, and different legal theories therefore do not multiply the number of claims for relief. One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.” N.A.A.C.P. v. American Family Mutual Insurance, 978 F.2d 287 (7th Cir. 1992). All that a Complaint needs to do, under the Federal Rules of Civil Procedure, is to “give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Here’s what that means. In writing up a Complaint to be filed in Federal Court, I typically identify the important facts (for example, on October 18, 2017, Officer Jones arrested Billy Williamson without probable cause, and charged him with resisting arrest). I succinctly summarize the facts. Then I marry the facts to the various theories of relief – that is, the theory of why those facts mean that the defendant needs to pay my client green money. My Federal civil rights complaints are as short as they can be, and only as long as they need to be. So what this section will be about is the various theories of relief you need to know about when suing a police officer.
But first, I need to introduce you to a federal statute: 42 U.S.C. § 1983, which reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
This is the statute that gives federal courts jurisdiction to hear claims alleging violations of the Constitution, and it’s the statute that creates a claim, a theory of relief, for such a violation. Its also the statute that gives plaintiffs the right to collect reasonable attorney’s fees if they’re successful in a lawsuit brought over violations of the constitution. See 42 U.S.C. § 1988(b).
Any suit brought in federal court to vindicate your constitutional rights against the government will likely be brought under 42 U.S.C. § 1983 (“1983 claims” as civil rights attorneys frequently call them).
In the next section, I'll go over the theories of relief that I've already identified, above, and talk about what the necessary elements are for each theory.
In the first segment of this blog, I identified a few theories of relief. Now I'm going to discuss them in a tiny bit more detail. The first of those is false arrest. Every person in this country (notice how I didn't say citizen - you don't have to be a citizen to have constitutional rights!!) is entitled, in the vast majority of circumstances, to be left alone. If a person is arrested without probable cause, he or she is the victim of a false arrest.
What is an arrest? Here, the legal definition of arrest is different from the dictionary definition. A person has been arrested if he is not free to go. We've all seen YouTube videos of people annoyingly repeating "am I free to go?" to some police officer. Without endorsing some of the antics that can be viewed on YouTube, that question is a good one. If you are stopped by a police officer, and you are not free to go, you have been arrested. Handcuffs are a detail.
Super. So what is a false arrest? A false arrest is an arrest that was made without probable cause. Probable cause for an arrest exists when the facts and circumstances at the time of the arrest, viewed from the perspective of a reasonable person in the officer’s shoes, warrant a prudent person believing that the suspect committed, is committing, or will commit a crime. See, for example, Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009).
Practically, that means that in order to have probable cause, a police officer must reasonably believe that a crime is being committed or was committed. The officer does not have to be right about his or her belief. The belief just has to be reasonable.
On officer is allowed to briefly stop someone, and even frisk them (that is, superficially pat them down), if they have an articulable suspicion - a suspicion based on facts that can be described using words - that a person is engaged in criminal activity or is about to commit a crime. This is called a Terry stop, after the Supreme Court decision that created the concept, Terry v. Ohio, 392 U.S. 1 (1968). Officers frequently use Terry stops to obtain probable cause to do a more invasive search. In other words, if an officer conducts a Terry stop and feels something, while patting a detainee down, that is illegal, the officer may then escalate the Terry stop. All of this means that someone might be wrongfully arrested and still might not be the victim of a false arrest. Of course, the best way to find out whether you have a case is call a lawyer. I'm one of those!