Recently, I got into a discussion about Rodney King with one of my more liberal friends. After the usual and customary dialogue about the “brutal” beating of King at the hands of the “vicious” Los Angeles cops, the conversation turned to the 1993 federal convictions of former LAPD officer Larry Powell and former LAPD sergeant Stacey Koon. When I mentioned the fact that the officers were initially acquitted of using excessive force in state court, but were then tried again and convicted by a different jury in federal court, we found ourselves focusing on the concept of double jeopardy.
“I thought there was some law about double jeopardy,” my friend said.
“There is,” I replied, “unless you’re a cop.”
“Gee, that doesn’t seem fair,” he said.
“It’s not,” I told him. “But if you think double jeopardy isn’t fair, try triple or quadruple jeopardy. In fact, how about being tried five times for the same incident?”
Obviously he wasn’t aware of the legal consequences of police use-of-force, and I really couldn’t expect him to be. But what’s more disturbing: Quite a few cops aren’t that familiar with the legal ramifications of using force, even now, 20 years after the Powell and Koon verdicts.
Five Charges
There are actually five major consequences that police officers can face regarding their use of force against resistive subjects. As readers may know, as a force trainer, I get called to testify frequently in excessive force cases, and I’ve been a court witness in all five forums.
Federal criminal charges: Title 18 of the United States Code, Section 241 or 242, provides for criminal prosecution for excessive use of force by police officers. This is the charge that the four L.A. officers were prosecuted under for the King incident.
Charges under Section 242 will be filed if you acted as an individual. If you acted in concert with another officer then Section 241 will apply as the plaintiff will allege a conspiracy existed between you and the other officer(s). The punishment can range up to life imprisonment, if the subject dies as result of your force application, and the fines can be as high as $250,000. Powell and Koon each received 30 months time for their roles in the King matter. Officers Ted Briseno and Tim Wind were acquitted.
State criminal charges: These are the respective state penal codes that we enforce: assault, battery, manslaughter, etc. And we all know the legal ramifications: jail or prison time. I’ve been a defense witness in state court several times for officers charged with criminal acts for their use of force. The state charges ranged from assault to murder. Fortunately all of the defendants I was a defense witness for have been acquitted, but some officers haven’t been so lucky. Former BART Officer Johannes Mehserle received two years prison time for an involuntary manslaughter conviction in 2010. He was reportedly reaching for his Taser but drew and fired his handgun, fatally injuring 22-year old Oscar Grant. Mehserle wound up doing 11 months local jail time.
Federal civil charges: Under Title 42 of U.S. Code Section 1983 or 1985, you can be sued and tried for your use-of-force actions. A 1983 action will be filed if the officer acted alone and a 1985 action is filed if the officer acted in concert with another officer.
Federal civil suits are the suits most officers are familiar with and, unfortunately, many don’t take them very seriously because, in general, departments will pony up any compensatory damages that the jury awards to the plaintiff. Compensatory damages are meant to compensate the plaintiff for his or her injuries. However, what most officers don’t know is that, in many cases, punitive awards can also be levied against the officer. Punitive awards are meant to punish, and they do just that.
Most of my consulting time is spent reviewing federal civil rights cases. The largest case I’ve been involved in was a case out of Maryland where the plaintiffs were asking for $990 million in compensatory damages. Fortunately, they never got a cent because the jury came back clearing the officer. The real danger lies in punitive damages since most of the time punitive damages are the responsibility of the individual officer. Generally departments can’t pay them, unions can’t pay them and most insurance companies won’t insure an officer against punitive damages. Usually there’s no limit on how much a jury can award in punitive damages.
When it comes to federal civil rights cases, if you lose, you can be forced to pay your adversary’s attorney fees. So even if the compensatory damages are relatively small, the legal fees the plaintiff has incurred can be astronomical.
State civil charges: The issues here are generally the same as those in federal court, but the venue is different. The charges can range from negligent training to negligent supervision to excessive force through negligence to the allegation that you intentionally injured someone. Just as in federal court, the legal ramifications are monetary. But unlike in federal courts, the jury pool will be made up of local citizens, so how you’re viewed by the community will play a large role in how you’re actions are viewed. Jurors are only human, and in many cases it depends on how they think about and perceive their officers.
Departmental charges or administrative reviews: Here, depending on how your agency works and/or how your union contract is set up, you can be fined, suspended, demoted or even fired for your actions on the street or in the jail. Allegations will be that you violated one or more of your agencies rules, regulations, policies or procedures. The forum can range from an informal hearing in a department conference room to a formal trial board before a tribunal of command staff. Unlike a judicial review, the rules of evidence can be very vague and the standard of proof somewhat obscure.
A few years ago, I testified on the side of the defense in a case in Pennsylvania where an officer was facing termination for a use of physical force. The trial board lasted days with the department, as part of their case, presenting not only the alleged victim, but also the police chief, several civilian witnesses and an agency force trainer who testified to how egregious the officer’s conduct was. Earlier, the officer had turned down a term of suspension and was adamant that his force application was proper. Fortunately, the hearing officer, a retired U.S. district court judge, agreed with my assessment and the officer was cleared of all charges and awarded back pay.
With all this as a foundation, here comes the tricky part. You can face any or all of these legal consequences for one single act. In other words, one specific incident on your part can result in all five legal actions being taken against you. You can be sued in both state and federal court, tried criminally in both venues, and also face a department trial board all for one act.
Finding Solutions
That probably sounds like, walks like and talks like double jeopardy. However, legally it isn’t. Not for cops. Of course in general, civilians can never be tried twice for the same offense, let alone five times. I say in general because, unless a cop sues his assailant in addition to arresting him (a practice which is becoming more and more appealing to officers these days) Joe Badguy for the most part is off the hook once his criminal court date is over.
So what is the solution? You have a few, beyond turning in your tin. First, train for the unexpected. Remember if/then (or when/then) thinking. Next, match your force response to the offender’s level of resistance. Know and practice your force options and review your policies thoroughly.
Remember these three words, “He forced me.” Prepare your written reports and statements with your legal risks in mind. Start preparing today for your legal confrontation. I tell every officer I train to always look at every use of force as a potential lawsuit. This isn’t paranoia, it’s preparation.
You can never keep a lawsuit from being filed against you. Not unless you spend your entire career in community services doing residential security checks. Even then, that little old lady whose deadbolt lock you’re installing may cut her finger on the key and sue you. But if you’re a hard-working, hard charging street cop, you’ll probably face a lawsuit before you face a gun.
Prepare for it now.
