The politics of federal law enforcement are now front and center in the courtroom of United States District Court Judge Alvin W. Thompson. That is where the federal government’s case against four East Haven police officers landed today. The officers are accused of various acts of police brutality, false arrest and obstruction of justice.
At the obligatory press conference, U.S. Attorney David B. Fein sounded like Bambi watching a forest fire: "There is no place for excessive force in a police station or on the streets," Fein said from the bully pulpit of his pressroom. "There is no place for false statements in police reports. No person is above the law, and nobody – even a person arrest for a crime – is beneath its protection." A lawmen with less lofty ambitions than Mr. Fein’s offered tabloid appeal: The four cops are "cancerous cops." They are "bullies with badges."
Screw the presumption of innocence. On Indictment day every prosecutor is a hero. Even if he is peddling stale bread.
The indictment is painful reading. John Miller, David Cari, Dennis Spaulding, Jason Zullo and unnamed co-conspirators are alleged to have used unnecessary force, to have arrested people without justification, to have filed false police reports, and then to have conspired together to lie about it all. What shocks about the indictment is not what is alleged, but rather how commonplace the allegations are.
Where have Fein and the Justice Department been for the past 30 years?
Claims of this sort used to be filed routinely in the federal courts under the Ku Klux Klan act, an old statute that permits people to file a claim against any state actor who violates their rights. So many of these civil suits were filed in the 1970s and 1980s that federal judges began to gripe about it. Today a plaintiff seeking money damages for these claims faces an often fatal gauntlet of immunities and defenses. Simply put, the federal judiciary thought there were too many claims against police officers, so they slammed the courthouse doors shut in rush of judicial activism that few seemed to notice. It’s hard to make a living suing cops these days.
So forgive me if I look at Fein and his band of prosecutors as late arrivals at a party that ended long ago.
Ironically, had these claims been filed in civil court, many, if not most, of them would have difficulty withstanding summary judgment, a judicially-created docket management tool that keeps all but the most glaring cases from getting to trial.
The defenses that most often succeed are as follows:
The force used was reasonable to overcome resistance of a man or woman perceived to be dangerous. Not every push, pull or shove violates the law. A police officer does not have to use the least restrictive level of force available. Juries rarely award money damages for unreasonable force in those rare cases judges permit to make it into the clear light of a courtroom. Police lawyers cast the streets as dark and dangerous places patrolled by silent heroes who risk their lives moment by moment to keep the rest of us safe.
Can the Justice Department overcome that defense?
And what of the false arrest claims? An arrest is lawful in the United States if supported by probable cause, namely, some reasonable basis to belief the defendant committed a crime. In a civil case against a cop, however, judges declare than an arrest can be valid even if there was not, in fact, probable cause. Mere "arguable probable cause" is enough. In other words, officers have to make quick decisions based on limited information. The civil justice system forgives errors made in good faith.
Can the Justice Department overcome that defense?
And try telling a civil jury about the blue wall of silence, the law enforcement code that binds officers one to another to prevent the truth from being told. Why, I have heard even seasoned police defense lawyers in civil court exclaim there is no such thing. The Justice Department now makes this claim central to the Indictment. The defendants, Justice says, routinely lied.
It is an easy allegation to make, but hard to prove. Can Justice do it?
I’ve sued hundreds of cops alleged to have punched, slapped, beaten or abused innocent people. I’ve brought actions claiming arrests were made without probable cause. I’ve stood in the well of the court and called hundreds of cops liars. It is hard work. Jurors are troubled by such cases, and are reluctant to accept that the trust they place in police officers was misplaced.
So I watched the proceedings today with a detached sense of cynicism. Fein and his band of federal prosecutors looked like freshly minted lawyers, just out of law school, mouthing platitudes about a world they have only read about. They’ve thrown down a gauntlet, effectively saying that the conduct in this case rivals that of the officers who attacked Rodney King. It’s easy to be a hero of your own press conference.
Where was Fein and his department for the past 30 years? Federal funding pays for the tools cops use to beat people down. And joint federal-state task forces pairing federal lawmen and local police are everywhere. Are we supposed to believe that the good folks at Justice only now discovered that things go bump in the night? There’s more than police misconduct at stake in this trial.
This prosecution reeks of politics. I don’t know the four officers. I haven’t sued any of them. Perhaps they are villains. But maybe they are just victims of a grandstanding prosecutor. I would like to know why this case gets a federal criminal prosecution and the hundreds of others pursued on the civil side in recent years did not. This indictment is plain vanilla.
I am scratching my head. When I have beaten police officers in open court, winning money damages for a broken bone, a broken oath or other misconduct, there was no federal prosecution. The officers just went back to work, with the city employing them most often writing me a check. I've also defended cops accused of crimes. The line between good cop and bad cop is mighty thin.
What makes this case different, Bambi? The burden is now on you. And it’s going to take more than silly name-calling to prove it. Odds are this case would not survive as a civil suit