The new frontier of criminal justice has undertaken a new posture. This landscape includes plaintiffs with cognizable legal claims for excessive force, false arrest, malicious prosecution and associated grievances. The notoriety of Ferguson’s (Mo) Michael Brown shooting[i], Staten Island’s Eric Garner chokehold & suffocation[ii] and Baltimore’s Freddie Gray untimely spinal cord injury death[iii] has culminated into a renewed awareness regarding civil rights. The cause of their deaths is not limited to black people. It is, however, as grossly disturbing as the injustice that caused their deaths, to minimize these civil rights violations and clear racial commonality. Nonetheless, to be clear: non-blacks can be, and are victimized, by excessive force from law enforcement officials as well. In addition to excessive force, blacks and whites alike are also subjected to false arrest and malicious prosecutions.
The Prevalence of Law Enforcement Violenceand Race
We find ourselves gripped by street level violence as a nation. This violence has occurred with alarming frequency in urban and, increasingly, suburban American communities at the hands of predatory criminals. Similarly, a pattern of violence among law enforcement towards citizens has increased over the past decade by the deployment of excessive force resulting in serious bodily injury and wrongful death. Unlawful detention, false arrests, gross violations of privacy and baseless criminal prosecutions are oftentimes initiated by law enforcement to justify this violence. The broad definition of legal specialization to address this misconduct is Police Liability.
For the most part, law enforcement officials are pillars of the society who truly protect and serve. It is important to distinguish those law enforcement agents who courageously and lawfully serve our communities from the class of public servants who are responsible for civil rights violations.
Over the past decade, state and local law enforcement agencies employed more than 1.1 million persons on a full-time basis, including about 765,000 sworn personnel (defined as those with general arrest powers).[iv] Surprisingly, only 1 out of every 116.4 officers was involved in any reported act of misconduct during this time frame.[v] These acts could range from violent encounters to an allegation of malicious prosecution.
Despite the relative historically low numbers of law enforcement officers above who have been involved in police liability claims, there appears to be a present increase in the amount and severity of these claims by officers from the same agencies resulting in consideration of policing data from a different perspective. This increase has garnered the attention of criminologists, jurists and Department of Justice statistical analysts as the results contradict the distortion of stability, and a decrease in reported police misconduct claims.
For example, police killed at least 1,152 people in the United States from January 1 thru December 15, 2015. Nearly 1 in 4 of these people were killed by one of America’s largest 60 city police departments.[vi]
The statistical analysis also reveals the likely victims of police misconduct. “Simply put,” says University of Florida law professor Katheryn K. Russell, “the public face of a police brutality victim is a young man who is black or Latino.” [vii] In fact, although statistics indicate that non-blacks or Hispanics (only non-black), i.e., white individuals, are the recipients of this misconduct in greater numbers, this statistical conclusion is reached because whites represent a larger aggregate number of the total population. Brian Forst, professor in the Department of Justice, Law and Criminology at American University, stated that this numerical difference is predictable:
More whites are killed by police than blacks primarily because whites outnumber blacks in the general population by more than 5 to 1.”[viii]
Forst further stated, “the county is about 63 percent white and 12 percent black.”[ix] In fact, black people were more likely to be killed by America’s largest city police departments in 2015. Moreover police departments disproportionately killed black people, who were 41% of victims despite being only 20% of the population living in these cities.[x]
Unlawful Detention & Arrest
False arrest rates are also disproportionate among blacks. All constraint or deprivation of liberty upon an individual is presumed to be unlawful unless the detention is based upon recognized and legitimate legal process. The control, restraint, arrest, or limitation upon free movement by law enforcement that is not preceded by the above legal process is presumptively a false arrest. To prove false arrest, it is not necessary for a law enforcement officer to physically restrain the detainee.[xi]
The perceived prevalence of false arrest racial bias is grounded in reality. Statistics regarding street stops in Pittsburgh and Philadelphia, Pennsylvania, and St. Petersburg, Florida, have demonstrated a pattern of disproportionate stops of blacks and Hispanics.[xii] It is commonplace for this restraint, or restriction on movement to occur while driving or as a pedestrian when detained by law enforcement. Even within this limited context, courts have held that traffic stops and searches have also been historically disproportionate based on race.[xiii] Furthermore, study results regarding the race of detained citizens in New Jersey, Philadelphia and New York were strikingly similar in these jurisdictions: 14% of New Jersey Turnpike vehicle operators were black motorists but constituted 46% of the traffic stops[xiv]; 6.5% of Philadelphia’s eighth district black residents compared to 91.2% of white residents where blacks constituted 26.8% of all pedestrians stopped by law enforcement[xv] in this city; and, for New York City in precincts consisting of at least 80% whites, where blacks comprised 10% or less of the population, traffic stops of blacks were more than ten times their population percentage.[xvi]
Malicious Legal Proceedings
Even criminal prosecutions have not escaped the taint of unjustified legal proceedings. Where a criminal action is commenced or continues without a lawful basis (i.e., arrest warrant, indictment, juvenile petition, etc.) and thereafter, truly concludes in favor of an accused, the civil claim of malicious prosecution may exist. This citizen recourse is aimed against law enforcement agents or government officials in their individual capacities.
Both the federal and state systems recognize the malicious prosecution claim as a viable civil action.[xvii] The mechanics of this claim are intricate and may vary by jurisdictional locations. Basically, law enforcement officers themselves may be held accountable for decisions found to be meritless and which were not preceded by authorized institutional legal process. In addition, unjustified legal proceedings that are racially motivated qualify as malicious prosecution claims.[xviii]
Federal and State Remedies
The statutory authority to present police liability claims under federal law is 42 U.S.C. § 1983.[xix] The federal statute provides:
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…
Generally, with few exceptions, each state has also promulgated statutes that establish provisions to initiate civil causes of action for excessive force, false arrest and malicious prosecution. These claims may be presented singularly, or combined, depending upon a plaintiff’s or practitioner’s strategy.
Anderson & Welch, LLC
Simply stated – – there is no deficit of excessive force by law enforcement resulting in civil claims. The Law Offices of Anderson & Welch, LLC, can personally attest to representing plaintiffs against agencies and law enforcement officials in their individual capacities for claims ranging from handcuffed tasings[xx] and SAGE weapon discharges causing ear amputation and permanent blindness[xxi] to unprovoked repeated punches to the face,[xxii] broken bones and ruptured organs of detainees. In addition, the firm has also provided representation for the claims of false arrest, malicious prosecution, search & seizure violations, privacy invasion, unwarranted law enforcement destruction[xxiii] and conversion of property.
The pursuit of justice not only demands a genuine respect for people and fair play by law enforcement, but also restoration of confidence in the legal system from those who are governed – the people. Although the population matrix of excessive force recipients clearly indicates a disproportionate number of black and Hispanic exposure to excessive force, justice does not trivialize police misconduct and liability against any race irrespective of skin pigmentation, ethnicity, gender or nationality. Therefore, the mindset is eradication of all law enforcement injustice for all people. The pursuit of justice is committed to the challenge of abusive or reckless governmental power and misuse of authority particularly within the criminal justice system with due regard for, but irrespective of race.
Kevin R. Anderson is a partner in the West Palm Beach offices of Anderson & Welch, LLC. His concentration is criminal litigation and police liability. He holds a B.S. in Criminology and Criminalistics with honors from Florida State University and J.D. from Syracuse University.
[i] Buchanan, Larry, Fessenden, Ford, Lai, Rebecca K.K., Park, Haeyoun, Parlapiano, Alicia, Tse Archie, Wallace, Time, Watkins, Derek and Yourish, Karen. What Really Happened in Ferguson. New York Times. August 10, 2015.
[ii] Goldstein, Joseph and Schweber, Nate. Man’s Death After Chokehold Raises Old Issue for the Police. New York Times. July 18, 2014.
[iii] Graham, David A. The Mysterious Death of Freddie Gray. The Atlantic. April 22, 2015.
[iv] U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008. Published July 2011. Reaves, Brian A., Ph.D., BJS Statistician
[v] Semi-Annual National Police Misconduct Statistics Reporting Project (NPMSRP). CATO Institute, 2009.
[xi]Miami-Dade Cty v. Asad, 78 So. 3d 660 (Fla. 3rd DCA, 2012).
[xii] Gershman, Bennett. Use of Race in “Stop and Frisk”: Stereotypical Beliefs Linger, But How Far Can the Police Go? 72 Apr N.Y. St. B.J. 42 (Mar/Apr 2000) citing Brief for the NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae in Support of Respondent, at 17-19, Illinois v. Wardlow, 120 S. Ct. 673 (2000) (No. 98-1036).
[xiii] Rudovsky, David. Litigating Civil Rights Cases to Reform Racially Biased Criminal Justice Practices. 39 Colum. Hum. Rts. L. Rev. 97 (2007).