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.

 

 

 

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Cops and Cameras

August 28, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rbcriminallaw.com

(972) 369-0577

Screen Shot 2020-06-16 at 10.08.22 AM

Cell phone video cameras in the hands of people at all levels of society have triggered dramatic changes in law enforcement over the past few years.

Police have been utilizing video and audio equipment for decades, normally affixed to their squad car.  The video has always been a great aid to both law enforcement and the citizens accused of offenses because it renders a clear and accurate depiction of what went on at the scene of the arrest. It protects officers from unfounded claims of brutality and harassment but also protects people from exaggerated criminal charges or claims in court.

So why is what we see on video now so much more dramatic than we’ve ever seen before?  Simply do a google search for “police brutality caught on tape” and you’ll see video after video of questionable conduct (or sometimes flagrant) police mis-conduct.

The simple answer is police are no longer in control of who, what, when and how incidents are video taped.  The cameraman has changed.

A squad car video has a limited lateral range.  For instance, when an officer has to leave his or her car and go to chase a suspect on foot or enter a house during a domestic call, the camera can’t follow though audio is often still available.  An officer has a good idea when they’re on and off camera based where they’re standing in relation to the car.

Police do have limited discretion when it comes to what gets recorded.  Virtually all squad cars cameras turn on when the over-head lights are triggered (barring technical malfunctions or very small police agencies).  Sometimes an officer turns off the audio recording.  Though this may be a no-no, it is very difficult to prove and most jurors are indifferent to such happenings.

Cell phone video cameras from citizens can record a police officer at any time, at any place and from any angle.  Unfortunately for police, the videos where people record an officer being professional and doing outstanding work don’t go viral.  The fact an officer can wake up any morning knowing by the end of their shift they could be on the cover CNN.com must be undoubtedly unnerving.

Prudent officers must realize this new reality and should be on their best behavior at all times — not just when they know they’re actions are being recorded by their own equipment.  The vast majority already are.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 

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Posted by Jeremy Rosenthal, Esq.

Criminal Law and Psychology

September 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

One of the things I geek out on in my practice is how psychology intersects with criminal law.  It never ceases to amaze me how the applications of this field of science could affect virtually any type of case ranging from marijuana possession and driving under the influence, to robbery and murder.

I am obviously an amatuer psychologist at best, so I’ll apologize and defer to any real psychologists that read my blog and take issue with anything I say.  Also, I’m well aware my discussion today only scratches the surface.

Our brains are constantly processing, prioritizing and often distorting information.  It’s part of being human.  My belief as a criminal defense attorney is that I have understand this is the case for everyone — myself included.  Not only do I have to understand this is the case, but I have the challenge of demonstrating to a judge or a jury the explanation may not be a clear as it appears.

Police approaching a driver may be influenced by all sorts of things which affect their perception… not the least of which are past experiences, biases and prejudices.  For reasons I don’t understand, police may also feel the need to be controlling to the point where they feel justified in manipulating someone into allowing them to search a vehicle or take take field sobriety tests.

Then there is the person that is pulled over on the road-side.  The presence of an authority figure in uniform can be extremely powerful… to the point that someone would capitulate to an unreasonable officer request even though the person may know it their legal right to refuse — and in their legal best interest to refuse.  The interplay between an officer with the need to control and an every-day person who is socially programmed to respect authority figures fascinates me an it’ often critical to demonstrate to the jury exactly what is going on between the lines so the understand the police’s white-washed version might not necessarily be the entire story.

Again, I could go on all day, but a last example I’ll give is psychology of an everyday person sitting on a jury.  As much as we think a juror reasons the same way we do, a good criminal trial lawyer has to understand that the juror is in a completely different mindset.  Jurors are responsible citizens that merely showed up at the direction of the county, city, or federal government for jury duty.  They are shuffled from room to room and ultimately put into a room full of lawyers they don’t trust trying to tell competing stories.  Jurors aren’t going to naturally gravitate to your position just because you think you’re so clearly right and the other side is obviously wrong.  Studying juror psychology, though, helps a good criminal trial lawyer shape and sculpt his message so that it is consistent with the jurors’s pre-existng values, beliefs, and biases.

As an attorney that frequently tries cases ranging from DWI and drug possession to aggravated robbery and other serious felonies, I make it a priority to know and understand all the psychological interplay more than my opponent prosecuting the case.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and communications sent to the attorney are not considered privileged.

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Posted by Jeremy Rosenthal, Esq.