Picking And Chosing Which Cops To Prosecute
There aren’t enough prison cells in the federal Bureau of Prisons for all the police officers who have pushed a detainee, and then lied about it in a police report. So it's hard for me to fathom why federal officials singled out Meriden’s Evan Cossette for prosecution. But there he was, convicted of shoving a drunken prisoner and then lying. Why prosecute this case and ignore so many more?
I put kids through college suing police officers, typically for using unreasonable force. In one case, witnesses saw a cop slam a kid in the head with a police baton as the kid sat handcuffed on the street. In another case, guards smacked a prisoner around after a failed escape attempt. A female officer was once found liable for slapping a young woman in the face. And then there was the case in which a cop used his nightstick to clobber a drunken fellow who mocked him. Juries awarded significant money damages in these cases, and many more.
In none of these cases did law enforcement officers lose their jobs, much less face prison. In all of these cases, the officers’ employers, and not the cops themselves, paid the money damages. In other words, taxpayers provided what amounted to insurance for these cops. I didn’t see any federal prosecutors chest-thumping for justice then.
Police liability for the use of excessive force is reflected in a complex body of law.
Ordinary citizens can sue a police officer for violating their right to be free from unreasonable force, a right rooted in the Fourth Amendment right to be free from unreasonable searches and seizures. Such a legal action is brought under a provision of a Civil War era federal law known as the Ku Klux Klan Act, passed during the darker hours of Reconstruction when it was clear that local Southern courtrooms might remain closed to people of color.
It wasn’t until the mid-twentieth century that this act was used as a means of suing police officers. Thirteen Chicago cops burst into the home of Monroe family. The family was made to stand by as officers ransacked their home. Mr. Monroe was taken the police station and held incommunicado for two days while he was questioned about a murder. The police officers did not have a warrant to enter the home, or lawful authority to take Mr. Monroe against his will to the police station.
No charges were ever lodged against Mr. Monroe, but he did sue, relying upon the little used provision of federal law that permits a person to sue a “state actor” for violating federal rights “under color of law.” Chicago’s lawyer argued the men had acted outside the scope of their authority as lawmen, and hence, were not state actors.
In Monroe v. Pape, the Supreme Court created a legal device that made it possible to sue police officers for money damages for the on-the-job misconduct. The court held that when officers are sued in their “individual capacities,” they could be forced to pay money damages. Suing them in their “official capacities” might, after all, violate the immunity that police officers typically enjoy as agents of their respective sovereigns. (Remind me sometime to devote a column to the outrage of sovereign and municipal immunity.)
In theory, successful individual capacity suits resulted in judgments the officers, and not their employers, should pay. But in some states, such as Connecticut, state and local governments typically pay the damages, a process known as indemnification. The thinking goes something like this: If we require police officers to pay out of their own pocket for the mistakes they make on the job, they might become too timid in the performance of their duties. Indemnification was sound social policy as a means of assuring the police weren’t always looking over their shoulders when making split-second decisions about whether to use force. Timid cops too often end up dead.
I’m not sure how the federal government’s decision to prosecute garden variety claims of police misconduct is going to make the streets any safer. State and municipal governments will go ahead and pay compensatory damages awards under indemnification agreements. But the federal government will send a cop to prison for the same conduct. If ever you wanted an illustration of just how dysfunctional federalism can be – parallel state and federal government enforcing laws over the same people at the same time – the Cossette case provides one.
A routine jury instruction given in every case involving allegations of police use of unreasonable force goes something like this: Not every push, pull or shove, even if is seems unnecessary in the calm of a judge’s chambers, violates the Fourth Amendment. Police officers are expected to make instantaneous decisions about how much force they must use to respond to a perceived or actual threat. We train officers in the use of force. Jurors are reminded that they must evaluate an officer’s decision based not on 20/20 hindsight, but from the perspective of an officer on the scene.
When money damages are at stake, the federal judiciary goes out of its way to protect police officers from the consequences of their mistakes. A legal doctrine known as qualified immunity has given judges the power to make sure most police misconduct cases never get to a jury. This judicially created device permits judges to toss all but the most egregious cases.
Evan Cossette didn’t get the benefit of the doubt in a federal courtroom. He was hauled into court and called a criminal by federal prosecutors. He now faces imprisonment. I’ve watched the videotape in his and looked at the police reports. I can name plenty of cops who are walking beats who’ve been accused of similar or worse.
Folks sometimes accuse me of being a cop-hater because I spent a decade or so suing police officers for money back before judges barred the courthouse doors by generous application of qualified immunity. Today, I represent a lot of cops, sometimes against federal prosecutors, but most often against accusations made by other officers. I’ve learned something representing lawmen: They are vicious when it comes to how they treat one another. The only professional group that rivals cops in pettiness and rancorous litigation against colleagues are school teachers.
I don’t hate cops. They’ve a tough, often impossible job to do. They have to keep the peace while the rest of us struggle with the growing gap between the rhetoric of the American dream and its failed promise. Just how federal prosecutors decided it was open season on local lawmen is a story that remains to be told.
Plenty of local cops were shaking their heads this week. Evan Cossette, a federal felon? Prison bound? Who’s next? They’re wondering. Don’t be surprised if the streets seem a little less safe for awhile. My hunch is cops will be playing it safe, lest an ambitious federal prosecutor comes scalp-hunting.