Can I Sue the Police After an Arrest?

December 10, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ll do my best to stay in my lane.  I defend people charged with crime and I don’t sue police but I get this question a lot so I’ll do my best to answer.

I often refer cases where folks are interested in taking legal action out to lawyers who focus more in that area.  But if I don’t think you’ve got much of a case — I can still probably diagnose it and let you know if it’s good time and energy spent on a bad task.

What I can also say is this – if you’re charged with a crime the first priority is always to defeat those charges.  I liken it to playing defense before playing offense.  Pleading guilty or losing a case where you’re trying to sue the police is a great way to spoil that case.

Immunity From Suit

Police, prosecutors and judges have wide-ranging immunity from civil liability and for good reason.  We want them to be able to do their jobs and not constantly worry about getting sued nor put their own personal assets on the line for just doing their job.

There are some limited situations where they are individually liable.  The main one is under 42 U.S.C. 1983.

42 U.S.C. 1983

This federal statute says the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congressapplicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In English – if a government worker as part of their job intentionally deprives someone of a constitutional right or liberty then they can be sued in federal court.  There are law review articles on this statute and it’s the subject of entire law school classes – so I don’t pretend for a moment this blog covers it all.

In short – 1983 claims are typically brought for police brutality and prison litigation but it isn’t exclusively reserved for that.  The standard is pretty difficult because negligence generally isn’t enough to trigger liability.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

Comments Off on Can I Sue the Police After an Arrest? | Assault, Civil Liberties, Federal Court, Police, Police and Prosecutors, Uncategorized | Tagged: , , , , , , | Permalink
Posted by niftybrady

What is Entrapment?

November 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Entrapment is a tricky concept. It occurs when law enforcement convinces someone to commit a crime.  It gets confusing because the entrapment must go beyond merely affording someone the opportunity to commit a crime.

The law further says the enticement must be enough to persuade a normal, law abiding citizen with an ordinary resistance to committing a crime.  A good rule of thumb when thinking of entrapment is to see where the original intent of the crime originated – with police or the accused?

Entrapment is a defense to prosecution and Texas Penal Code 8.06 says:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Example of Situations Which are Entrapment:

  • A recovering addict is getting addiction treatment.  An undercover police officer meets the addict in the lobby of the counselor.  The undercover asks the addict to provide illegal drugs.  The addict refuses citing his attempt at recovery.  After repeated attempts to convince the addict, the addict gives in and attains and delivers drugs to the undercover officer.  See Sherman v. United States, 356 U.S. 369 (1958).
  • Undercover officer makes repeated attempts at having defendant provide access to drug dealers and drugs after defendant was reluctant after 12-year relationship. See Torres v. State, 980 S.W.2d 873 (Tex.App. — San Antonio, 1998).

Example of Common Situations Which Are Not Typically Entrapment

  • Person sells drugs to undercover police officer;
  • Persons who seek out and hire a hitman to kill someone;
  • Public servant who is offered a bribe and accept it.

Other Thoughts on Entrapment

Candidly – there is a strong bias against the entrapment defense by judges and juries.  Entrapment is more of an academic argument for that reason – and typically the most a court can do in a case of entrapment is give the jury an instruction they can acquit an accused on that basis.  So even if the person meets the legal pre-requisites of entrapment a jury still might not buy it.  Most people think the government conduct would have to be so outrageous as to strongly over-shadow the crime committed.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

Comments Off on What is Entrapment? | Appeals, Cannabis, cannibus, Drugs, Homicide, marijuana, Murder, Police, Police and Prosecutors, Uncategorized, White Collar Crime | Tagged: , , , , , , , | Permalink
Posted by niftybrady

Can the Police Lie To Me?

November 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Yes, the police can lie to you during an investigation.

Deception is a legitimate tool of law enforcement.  If you don’t believe me, watch any mafia or gang movie where the police plant someone to infiltrate the group.  I’d call someone with a fake identity who pretends to be someone else a touch on the dishonest side, would’t you?

Let’s be honest – often the ends justify the means.  We all want killers, child molesters, or thieves to be caught and a bit of trickeration is typically tolerable to a point for all of us depending on what the police are digging into.

A key assumption I am making here is the officer or detective’s mind is made up about the case before they attempt to speak to the accused.  Just know this obviously isn’t always the case.  There are many times an officer legitimately isn’t trying to manipulate someone into giving them information and they really are just trying to understand what really happened in a given case.  Then again, the whole reason for this blog today is we’re never 100% that we know the difference.

Lawyers cannot lie ethically whether in court or not.  I’m not aware of any similar ethical requirement of police or law enforcement.  They cannot commit perjury, obviously — but when they deal with a citizen under investigation they are not under oath.

How Common is it for Police to Lie During an Investigation?

Very common.  And to be fair to police, lies come in all different shapes and forms and rarely are they complete fabrications like infiltrating the mob.  Some can be exaggerations, lying by not telling a suspect the complete truth about what the police know, or telling a suspect half-truths to try and get them to open up and confess.

Many agencies employ the Reid Method of Interrogation – a controversial tactic with psychological underpinnings designed to manipulate an accused into confession.

Everyday Examples of Police Techniques

During a DWI arrest – the officer may say something like “I’d like to have you do some tests to see if you’re okay to drive.”  It’s pretty disingenuous when the cop has already called the tow-truck to have the person arrested.  In this instance the officer is leaving the false impression the person can somehow avoid the arrest if they perform well enough or are cooperative.  But police are trained to get all the evidence of the intoxication on video tape – and this is exactly what they are doing in this example.

During a Sexual Assault Investigation – a detective might often pretend to know facts they don’t.  Or a detective might do the opposite – pretend not to know anything but in reality know many of the answers to the questions being asked.  Like the Driving While Intoxication situation – the officer may give the false impression the suspect can talk their way out of an arrest when in reality the detective has already secured an arrest warrant.

Bluffing or “Hot Boxing”– Police bluff and threaten certain consequences they can’t follow through on knowing they are dealing with someone who doesn’t know the difference.  Another term I call “hot boxing” is where an officer puts on a high-pressure push to get a person to comply with an interview or make statements.

Vagueness as a Weapon – An extremely common thing I see is a police officer or detective simply being vague with a suspect.  “If you don’t tell me your side of the story, I can’t help you” or “I just want to hear your side the story.”  As you can see there are no real promises here and it implies no decisions have been made.  But that’s not always true.

There is No Substitute for Experience and “Feel”

The fact is if you’re facing a situation where the police want to question you – and you’re concerned they’re being less than 100% honest with you then you really need a lawyer in your corner.

Police have a much more difficult time manipulating or/ working an experienced lawyer – and most don’t even try.  But one thing an experienced lawyer can have with an investigating law enforcement agent is an honest conversation.  And that’s a good thing.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Can the Police Lie To Me? | Civil Liberties, Police, Police and Prosecutors | Tagged: , , , , , | Permalink
Posted by niftybrady

Why Children Have to Testify in Sexual Abuse Cases

November 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Children must often testify in open court to satisfy the U.S. Constitution’s confrontation clause in the 6th Amendment.  The 6th Amendment has been repeatedly held to require a defendant be allowed to cross-examine their accuser in open court.

Other examples of the confrontation clause would be the arresting officer in a DWI arrest having to take the witness stand, a battered spouse having to take the witness stand in a prosecution against their abuser, or an eyewitness to a crime like robbery.

Emotional Trauma Versus Principals of Justice

Many folks feel like having to put the child on the witness stand is just an arbitrary rule with long-term emotional damage as a consequence from the trauma of having to testify.  Unfortunately they are often correct about the emotional trauma – I have spoken with many adults who had to take the witness stands as children and it is normally reported as an awful experience.

While I can’t make anyone feel much better about impact of the rule on the child – perhaps I can at least speak to the gravity of what the rules try to accomplish.

Why the Right to Cross Examine is Critical to Our System of Justice

My favorite quote about the right to confront is by Henry Wigmore, “Cross examination is, beyond a doubt, the greatest single engine for the discovery of truth.”  I couldn’t agree more.

While “cross examination” seems harsh understanding we’re talking about children – it really just means the difference between asking closed ended questions and open ended questions.

Consider in a sexual assault of a child case – the police, detectives and children’s advocates only ask the child “what happened next…..? and then what happened….? and what happened after that?”  It is probably a decent way not to suggest facts and details to the child, but doesn’t really scrutinize anything either.  It sort of assumes it all to be true without pressing any of the weak points of the story.

Now consider a child telling their parent they feel sick and can’t go to school.  Is the parent just going to ask how the child is feeling and regardless of what the child says accept it all as true?  Probably not.  The parent will probably conduct a bit of an investigation which tests the child’s claims.  Is there a fever?  Don’t you have a test today?  The chicken we had for dinner last night didn’t make anyone else sick?

Perhaps the child’s claims of being sick withstands the cross examination… then again, maybe the story withers.  This is how cross examination with pointed, leading questions can get to the truth.  Open ended questions, on the other hand, provide a stage for someone to make their sales pitch.

Can’t Someone Else Testify in Place of the Child?

Unfortunately not.  Another component of confrontation is cross-examining the actual witness and not a surrogate.

The law recognizes the surrogate simply will not know the details sufficient enough to provide a meaningful cross examination.  Was it light or dark outside?  Was the weather cold or hot?  Who else was in the room?  The surrogate typically won’t know the actual details and cross examining them is not the same as cross examining the accuser.

Separating Fact Versus Fiction About Children Testifying

A common misconception from the parents or legal guardinan of children having to testify is it would be like television or the movies.  That the accused will make threatening faces at the child or try to jump over counsel-table and charge the witness stand.  I’ve never seen or heard of anything like this remotely happening.

The truth is the accused is going through a range of emotions too like fear, uncertainty and who knows what else.

Other Rules about Children Testifying in Texas

Texas rules do allow grown-ups to testify in certain situations about what they child told them.  Those rules are allowed to essentially supplement what the child says and not replace what the child says.

It is also a criminal offense to try and persuade or influence any witness, child included, about their testimony.  It’s obviously a crime, too, to try and convince a witness to ignore a subpoena or not testify.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact a lawyer directly.

 

Comments Off on Why Children Have to Testify in Sexual Abuse Cases | crimes against children, Police, Police and Prosecutors, sex cases, sex crimes, sex offender registration, sexual assault, Uncategorized | Tagged: , , , | Permalink
Posted by niftybrady

The Police Want to Interview Me – Won’t Telling Them “No” Only Upset Them?

November 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Declining to be interviewed by the police when you’re under investigation will probably upset them.  But who cares?  What are they going to do in retaliation — accuse you of a crime?  Hint: they’re probably already accusing you of one and you’re the last one in on the secret.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure it happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.

Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  We’re all raised thinking that people around us have open minds — but any trial lawyer that deals with juries on a regular basis can tell you how hard (or impossible) it can be to change a juror’s mind once they formulate an opinion.  Think about how, when you debate sports, politics or religion with a person who doesn’t seem very committed to any position — yet will simply not be persuaded by anything you have to say.  If anything, they tend to get more engrained in their position when challenged.  Police reason no differently about cases they’ve made up their mind on.

We are all programmed from the time we’re little to respect authority and submit to the wishes of authority figures.  Police (whether they think of it in these terms or not) absolutely use their authority status to manipulate a person into giving them information they’re not legally entitled to have.  And to be clear — this is good police-work as deception is a legitimate law enforcement tactic.

Police know people will try to convince them of their innocence and they use it to their advantage in getting information.

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison for the rest of your life depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

*Jeremy F. Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer By Thomson Reuters.

Leave a Comment » | Civil Liberties, Computer Crimes, crimes against children, Murder, Police, sex cases, sex crimes, sexual assault, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

« Previous Entries
Next Entries »