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Criminal Defense Blog

Excessive Force By Police

In light of the recent events in Ferguson, Missouri where an unarmed 18 year old man was gunned down by police, it is important that we stop and remember that there are ways to combat excessive force by police. When race is involved, it is obviously a polarizing issue. Media and news outlets from across the nation have weighed in on the Ferguson Police shooting. I was recently interviewed by our local ABC affiliate to discuss the potential ramifications of police brutality or excessive force.

Realistically, any time there is an officer involved shooting there is a potential of three different things happening: An internal investigation by the police department, a criminal investigation by the police department or an outside agency, and a civil lawsuit against the officer and/or the department.
Internal Investigation – This is an investigation done by the police department that employs the officer involved in the shooting. Typically the officer is placed on paid administrative leave while the investigation is conducted. The point of this investigation is to determine what disciplinary action, if any, the officer should face for the shooting. The most severe thing that can happen here is that the officer can lose his or her job. However, the department could also determine that the officer’s actions were justified, leading to no discipline whatsoever.
Criminal Investigation – There is the possibility that either the department that employs the officer involved in the shooting or an outside agency could conduct a criminal investigation to determine if criminal charges should be sent to the prosecuting attorney against the officer involved in the shooting. In my opinion, it is a terrible idea, not to mention a deep conflict of interest, for the police agency that employs the officer to conduct the criminal investigation. It is much safer and reduces the appearance of impropriety if an outside agency conducts any criminal investigation. Much like in the Ferguson shooting case, rather than the Ferguson Police Department investigating the case, the FBI has stepped in to investigate. Once the investigation is complete, the case file will likely be turned over the the prosecuting attorney to determine if there is any criminal liability on the part of the officer. If it is decided that there are grounds for charges, which would include a criminal mental state by the officer, it is up to the prosecutor on what charges to file. Those can range from misdemeanor assault all the way up to various degrees of murder. Oftentimes, however, the shooting will be determined justified and no criminal charges are filed. If criminal charges are filed, the burden is on the prosecutor to be able to prove them beyond a reasonable doubt at trial.
Civil Rights Lawsuit – The last possible outcome of a police involved shooting is for the victim or victim’s family to file a civil rights lawsuit alleging that the police officer violated the victim’s civil rights. There is a provision of the United States Code, 42 U.S.C. Section 1983, which allows for such a lawsuit. The lawsuit will usually name the officer involved in the shooting, as well as the police department that employs he or she. Any time a police officer touches a civilian, even if it is with an object, or even a bullet in the most severe instances, legally speaking a seizure has occurred. As the Fourth Amendment to the U.S. Constitution states, all citizens are presumed free from unlawful searches and seizures. Therefore, when it is alleged that the Fourth Amendment has been violated, a 1983 action can be filed. It is then up to the officer or the department to justify the actions of the officer and to demonstrate that the actions were lawful. As has been reported, the family in the Ferguson, Missouri case has hired the same attorney from Florida who Trayvon Martin’s family has hired. It is anticipated that a civil case against Ferguson PD and the officer is imminent. Once a civil 1983 action has been filed, it is up to the victim or his family to prove the allegation by a preponderance of the evidence to the jury, which basically means that the force used by the officer was more likely than not excessive under the circumstances.

Although these types of cases are polarizing and can sometimes grip a nation, it is best to let the various legal processes play out. It is not time to jump to conclusions either way, rather, it is time to let the investigators investigate and to simply observe as the legal chess match subsequently ensues. It is no doubt going to be a long process, and surely emotions that lead to criminal behavior such as rioting, burglary, and damaging people’s property cannot run this high for long.