I know a thing or two about suing police officers. Indeed, I paid for a few college educations with the proceeds of money earned in the well of the court in police misconduct claims. In those cases, cities and the state paid for the misdeeds of errant cops. The men kept their jobs. No one even talked about a federal indictment for civil rights crimes, much less time in a federal prison.
So I was stunned when former East Haven police sergeant David Miller entered a guilty plea to one count of a civil rights violation in a federal criminal case. According to the press, he punched a handcuffed man in the stomach. The victim was an Italian-American. In exchange for his guilty plea, and his cooperation against against other officers, including my client, Patrolman Jason Zullo, federal prosecutors are holding out the hope that Mr. Miller will not be required to go to prison.
“East Haven Police Sergeant Pleads Guilty in Civil Rights Case, Might Avoid Prison,” a headlines in Connecticut’s largest paper, The Hartford Courant, reported. Mr. Miller could have avoided both the risk of prison and the sad fact of a felony conviction, which will follow him now for the rest of his life as a stigmatizing scarlet letter, if he had simply faced a jury of his peers and gone to trial. What accounts for his failure of nerve?
Police misconduct cases are a staple of the federal courts. Police officers are routinely sued for the use of unreasonable force and false arrest. Most of these cases are thrown out of court before they ever see a jury. Of those that get to a jury, most are resolved by a verdict in favor of the police officer. Plaintiff’s victories are few and far between these days. When a friend won a small verdict for some $6,000 against an officer the other day, it made the news.
Jurors are told, and police are taught, that an officer has the right to use reasonable force to make an arrest. Not every push, pull or shove when seen in the calm light of 20-20 hindsight is unlawful, the Supreme Court has ruled. We train police officers to use their hands as weapons, and then arm them with other tools of violence -- nightsticks, batons, pepper spray, even guns. Each of these items can be used to take a person into custody; the law requires a reasonable calibration of the force used against the provocation faced. Like it or not, the law forgives officer’s mistakes in close cases through application of a legal doctrine known as qualified immunity.
A gratuitous punch is never reasonable. A police officer cannot assault a man who is not resisting arrest and is complying with the officer’s orders. But just when has an arrestee stopped resisting? The line is sometimes hard to recognize. Mistakes are made.
If the new standard in the Justice Department is that every questionable push, pull or punch should result in a federal prosecution and the risk of prison time, then I say the prisons are not large enough to hold all the defendants who will be charged with crimes. Perhaps each state will have a separate prison just for convicted police officers. If Mr. Miller’s allegedly errant punch makes him a felon, then why aren’t all the other cases alleging such violence prosecuted? Selective enforcement breeds disrespect for the law.
Mr. Miller was prosecuted because he is a pawn in a much larger game, a game of cat and mouse in which the target is none other than former East Haven Police Chief Leonard Gallo. Throughout the year, federal prosecutors have spared no effort to build a case against Gallo. They have failed thus far. Will Mr. Miller now give them the evidence they need?
Last year, an eye-popping set of allegations were made against several members of the East Haven Police Department, including Miller, and my client, Mr. Zullo. They engaged in racism: they targeted Hispanics for arrest; on several occasions one or more of the defendant’s used unreasonable force. When I was asked to represent Mr. Zullo, I read the federal indictment with trepidation. What had these men done to secure the wrath of the federal government?
Not much, it turns out. The indictment is a threadbare set of allegations most of which would not survive the rigors of a civil proceeding. But, of course, in the criminal courts, defendants lack the tools to force the government to give up its evidence so that a case can be tested before trial. Under our law, civil defendants have more rights than criminal defendants: try to take an insurance company’s money in a civil suit, and you’ll be tortured with motions of all sort by a civil defense lawyer. If you are charged with a crime, however, you can’t do much but sit and wait for a jury.
When East Haven police officers investigated stolen license plates and unregistered vehicles, the owners of the cars, who were Hispanic, cried foul. Activists jumped in. The Yale Law School made a project of the case. Idle electronic chatter from the officers was isolated and lawyers concluded the officers were racists. But on a close review of the evidence and the allegations, it seems to me the claims are threadbare. The law permits a police officer to investigate crimes, even if those who commit the crimes just happen to be illegal aliens with powerful and politically correct friends. Immigration status is not a valid defense to a routine traffic stop.
I don’t know why Mr. Miller lost nerve. An errant punch has never been a federal crime in Connecticut before. Surely his lawyer knew that.
The remaining defendants in the East Haven prosecution face trial in January. I am looking forward to trial. Obviously, the stakes are high for my client. But based on what I’ve seen in scores of civil prosecutions of police officers, there’s nothing to this case. Poor Mr. Miller. He was sold a bill of goods. He will now pay for it for the rest of his life.