Ways to Complain about Police Brutality and Police Misconduct
There are three ways to complain about brutality or misconduct by police officers:
- internal complaints,
- criminal complaints, and
- civil suits
A person can use any one or a combination of these avenues. However, sometimes a police department will not conduct an investigation while there is a pending criminal complaint against the police officer.
Caution: If there are criminal charges pending against you, you should speak to your criminal defense attorney before making any type of complaint about police conduct. As a criminal defendant, you have the right to remain silent, but you give up this right when you complain. An internal complaint may hurt your criminal case because you will need to discuss the facts of the incident with the police department. It also could provide an incentive to the police department to prepare your case more thoroughly to try to obtain a conviction against you. Your criminal defense lawyer can give you advice on whether and when to seek a criminal complaint against a police officer or to file a civil rights lawsuit.
INTERNAL COMPLAINTS TO POLICE DEPARTMENTS
All police departments have methods of taking civilians’ complaints about police officers. Usually these complaints are referred to as internal affairs complaints. These complaints are investigated by other police officers. In larger police departments, there often is a separate division that handles complaints.
Positive Aspects of Internal Complaints
Filing an internal complaint is the only avenue that can lead to discipline or termination of a police officer other than a criminal conviction of the officer, which, as discussed below, very rarely happens.
Even if an internal complaint is not sustained, it usually stays in the officer’s personnel file. In a properly run police department, the fact that an officer has attracted a large number of complaints should trigger closer scrutiny. Most police officers, even those who make many arrests, receive no more than one internal complaint in their entire career. An officer who receives multiple complaints is doing something differently than other officers.
A complaint puts the police department on notice of a police officer’s behavior. Because police officers work on the street, supervisors do not know how an officer interacts with the public unless members of the public provide feedback.
At times, the Law Offices of Howard Friedman represents victims of police misconduct in pursuing internal complaints. Usually we do this without charge to help the client and to try to make the system work. Unfortunately we cannot do this in every case. We are, however, interested in learning about how people who file internal complaints are treated. Our firm works with the Greater Boston Civil Rights Coalition, the ACLU of Massachusetts, and other groups on issues in internal affairs, including helping people who have trouble getting police departments to accept or investigate internal complaints.
Negative Aspects of Internal Complaints
The investigation is totally internal. The complainant is not given any information until it is concluded. Much of the investigation is kept secret from the person who complained.
Most complaints by non-police officers do not result in a finding of fault, while complaints by superior officers almost always are sustained.
When a police agency does find a police officer is at fault, rarely is it for brutality or an illegal arrest. Most supervisors worry that if they find a police officer violated a person's constitutional rights, the department or officer will be sued. As a result, many agencies would rather discipline an officer for failing to write a use of force report or failing to note the person arrested was injured.
In the uncommon event that an internal investigation recommends significant discipline after a serious act of police misconduct, the discipline is not always upheld. Officers can reduce their discipline by negotiating through the police union or by appealing the decision to an arbitrator. In one of our cases, a Boston officer was fired for using excessive force on our client and then lying about it, but he won his job back through arbitration. In another case, five New Bedford officers who were involved in the death of our client each received only a 4 day suspension despite an internal police investigation that recommended discipline ranging from six months’ suspension to termination. These reduced penalties are a frustrating trend in our wrongful death cases. Strong sanctions punish and deter police abuse, while these reduced penalties teach police officers that they can break the rules without fear.
The civilian has no right to appeal in most cases. While the police officer can appeal an unfavorable ruling to the Civil Service Commission, to an arbitrator, and to court, the person who complains has no right to appeal an incorrect decision.
If a complaint must be decided based on who is telling the truth—a police officer or a civilian—police departments almost always either find for the officer or conclude that they can’t decide one way or the other. Thus the complaint is “not sustained.”
Other police officers at the scene typically follow the unwritten "code of silence." These officers will not report witnessing a fellow police officer punching or kicking a civilian. The other officers are usually represented by the same union lawyer. These officers either say their fellow officer used reasonable force, or they claim they did not hear or see the beating. Police officers who stand by while another officer beats a person can be legally responsible for the injury, another reason most officers do not truthfully report witnessing a fellow officer using excessive or unreasonable force.
The civilian has no control over this process. The police investigators are not likely to listen to a civilian’s ideas about whom to speak to or how to determine the truth.
CRIMINAL COMPLAINTS AGAINST POLICE OFFICERS
Often police misconduct violates criminal laws. Although a police officer is privileged to use force in making an arrest, using force when none is necessary or using more force than is necessary is criminal conduct. However, as explained below, police officers are rarely charged with criminal conduct. When police officers are charged criminally, grand juries are less likely to indict them and juries are not likely to convict them. When police officers are convicted, judges are more likely to give a police officer a light sentence. In giving a light sentence, some judges mention the good the convicted criminal did as a police officer. Other judges feel serving time in prison would be more difficult for a former police officer, so they give a lighter sentence. When police officers appeal a conviction they are more likely to obtain a new trial or other relief. The system is tilted in favor of police officers as criminal defendants.
State Criminal Charges
In Massachusetts, any person can file an application for a criminal complaint at a state district court. A clerk magistrate will hold a hearing to decide whether there is probable cause to issue a criminal complaint. Because the police officer is typically a frequent witness in the court where the application is filed, it is often difficult to convince the clerk to issue a criminal complaint against him or her. The only role you have after seeking the criminal complaint is as a witness. The prosecutor does not represent you.
If a criminal complaint is issued against a police officer, it is up to the District Attorney’s office to prosecute the case. The District Attorney (DA) is not required to prosecute, and often he or she decides not to. The DA relies on police officers as witnesses and investigators in all of the cases in the office. This makes it politically difficult for a DA to prosecute a police officer. Often when there is a strong criminal case against a police officer, the DA will ask the Attorney General or a special prosecutor from another county to prosecute. Remember, the DA’s office is likely to have many criminal cases in which the abusive police officer is the chief witness for the DA.
A DA’s office is much more likely to prosecute a police officer for conduct that is outside the scope of a police officer’s job rather than for use of too much force in an arrest. A DA might prosecute a police officer for stealing money from a charity fund drive, for selling drugs, or for committing an off-duty sexual assault. Traditionally DA’s offices have not vigorously pursued police officers for common criminal charges like operating under the influence or domestic violence because these charges and the resulting loss of a driver’s license or license to carry a firearm can prevent a police officer from working. Charges that a police officer abused his authority by using excessive force are typically too controversial for a DA’s office to handle.
Federal Criminal Charges
Police use of excessive force is a federal civil rights violation. These allegations are investigated by the FBI and often are prosecuted by lawyers in the Civil Rights Division of the Justice Department. A federal criminal civil rights prosecution can be very effective. Local police officers are not familiar figures in federal court, so they do not have the same bias in their favor that often exists in state courts. However, federal prosecutors do not take very many cases involving police officers. A federal prosecution may take place if the police misconduct is particularly outrageous. Even then, prosecutors do not take cases unless they believe that they have very strong evidence to support a conviction.
CIVIL SUITS
The Law Offices of Howard Friedman primarily represents people in civil suits. The advantage of a civil suit is that you hire the lawyer, and it is the lawyer’s job to represent your interests. As a client, you work with your lawyer to decide whom to sue and what claims to bring. In consultation with your lawyer, you decide whether to settle the case.
As a plaintiff in a civil suit, you can require police officers and witnesses to attend depositions. A deposition is a formal procedure during which your lawyer questions the police officer or witness under oath while a court reporter records the conversation. Your lawyer can also request documents from the police officer and his or her employer. Your lawyer can develop the evidence. You have more control than you do in an internal affairs process or during a criminal case.
Most civil suits seek money damages. Money can be very helpful to a person who has been injured by a police officer. Often our clients do not have health insurance, or they need treatment that is not covered by their insurance. Money can pay outstanding bills, pay for therapy sessions, permit you to take classes to improve yourself, or help you move from the place where the incident took place. An award of money damages also sends a message that the police officer’s actions are unacceptable.
We believe that awards of money damages cause police departments to improve police practices. Rational administrators will improve police hiring, supervision, and training to avoid future money judgments. Insurance companies often insist on changes in policies after a successful lawsuit as a condition of continuing insurance coverage. Damage awards get attention, which can result in positive changes to prevent further violations of civil rights even though they rarely result in discipline of the police officers involved. Most police officers do not want to be sued, so they will try to avoid the actions that caused a fellow officer to be successfully sued.
When the case is right, we can also ask a court to order a change in policy by issuing an injunction. Typically this occurs when the civil rights violation was caused by an affirmative policy that was routinely applied. For example, we challenged a policy in Boston that caused every woman who was arrested and not released on bail to be strip searched, when men in the same situation were not strip searched. Most of the time, however, cases alleging police abuse do not fit the tough standards required for a court order.