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5 Considerations When a Client Wants to Sue the Police

By Mark Wilson, Esq. on December 08, 2014 | Last updated on March 21, 2019

In the wake of the non-indictments in both the Michael Brown and Eric Garner cases, everyone's talking about the possibility of civil suits against the Ferguson, Missouri, and New York City police departments.

Those are by no means certain, though. If you have a client who's thinking about suing a police department, here are some things to keep in mind about police civil suits.

1. The civil claim must wait.

Civil suits take a back seat to criminal ones because criminal suits carry the great weight of the state's punishment power, meaning civil suits get stayed pending the criminal trial outcome. Therefore, a client isn't going to get anything for a long time (and clients are already upset that litigation takes so long).

2. Medical tests.

If a client is claiming some kind of injury, then the police department is going to force the client to undergo medical and/or psychiatric tests. These tests (which will, of course, prove the police did nothing wrong) can also be scheduled far away to make them extra burdensome, and if there's a limit to the distance a client can be made to travel, you can bet the department's doctor will, coincidentally, be at the outer boundary of that distance.

3. Qualified immunity.

Our old friend qualified immunity protects government actors from reasonable violations of settled law. Basically, only intentional or woefully negligent conduct gets punished. If the law surrounding, say, a particular application of excessive force is unclear, then your client loses. If the law is clear but the officer's use of force was reasonable, then your client loses.

4. Will you get anything?

Depending on your cause of action, the police department may actually be able to wiggle out of the case (as in a 42 USC 1983 complaint, where there's no respondeat superior liability if the officer's actions were a one-off incident that the department couldn't have stopped). You're left with a police officer, who probably doesn't have nearly the amount of money that would compensate you for your injuries.

5. It depends on the plaintiff.

Success often depends on the plaintiff, not the defendant police officer. As we've learned over the last two weeks, juries (at least mostly white juries) have an inherent trust of police and you'd better believe that any whiff of criminality in a plaintiff's background will be used against the plaintiff at trial to suggest that he or she is somehow undeserving of a favorable verdict.

Really, what a police civil suit plaintiff wants is a settlement, not a trial. But even a settlement might be a long time coming. And appeals? Yup, There Will Be Appeals.

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