Police Misconduct Claims
Police misconduct happens when police officers act outside of the scope of their authority and against your rights. While use of excessive force, often referred to as police brutality, may receive the most media attention, there are other forms of police misconduct. This includes false arrests as well as harassment of innocent people, especially when that harassment is motivated by unlawful discrimination (such as racial profiling). Police misconduct also includes conduct leading to a wrongful conviction, where people spend years and even decades in prison for crimes they did not commit. It is important to understand your rights and the circumstances police can violate them, as well as what you should do anytime you are approached by the police.
Pursuing a lawsuit for police misconduct may seem like a daunting task, but with experienced civil rights attorneys on your side, like our team at Tarlton Polk, you can get the justice you deserve. It’s critical that you contact an experienced attorney when filing these claims, as it not only benefits you but your whole community by holding your local police accountable.
If you or someone you know was the victim of police misconduct, do not hesitate to contact an experienced civil rights attorney. Our team will work to great lengths to acquire justice.
What is Police Misconduct?
Police are expected to understand your rights and only make an arrest based on probably cause that a crime was committed and the suspect they are apprehending committed it. They also only may use force when lawful and necessary, but cases where they exceed legal bounds happen regularly. North Carolina has several laws dictating when police are allowed to use force, make an arrest, and what actions constitute an interference with civil rights. Congress, through the statue 42 USC Sec. 1983, and our federal courts through case law have also established laws governing the legality of arrests, including the 4th Amendment law on what consitutes a lawful arrest or search.
When can an Officer Make an Arrest?
When there is a warrant for your arrest:
- Warrant in officer’s possession: If the officer has the warrant on-hand, they may arrest the person named or described at any time at and place within the officer’s territorial jurisdiction.
- Warrant NOT in officer’s possession: If the officer is aware that there is a warrant for arrest but does not have the warrant on hand, they may still make the arrest at any time. The person arrested must be informed that there is a warrant for their arrest and served it as soon as possible.
Arrest without a warrant:
- The offense is committed in the officer’s presence: An officer may arrest you without warrant if they have probable cause to believe you have committed a crime or violated a pretrial release order.
- The offense was not in the officer’s presence: An officer may still arrest with probable cause of a committed felony or various misdemeanors. Typically misdemeanor arrests without warrant can occur when the offender will not be apprehended unless immediately arrested, or may cause physical injury to themselves, others or damage to property unless arrested.
A law enforcement officer may also detain any individual arrested for violating an order limited freedom of movement or access, such as individuals under house arrest or a restraining order.
What must an Officer do when Making an Arrest?
An arrest is considered complete when the person submits to the control of the officer who has indicated intention to arrest, or the officer has taken the person into custody by the use of physical force. When making an arrest, law-enforcement must:
- Identify his or herself as a law-enforcement officer unless that identity is otherwise apparent.
- Inform the arrested person that they are under arrest.
- As soon as reasonably possible, inform the arrested person of the cause of arrest, unless it appears to be evident.
When can an Officer use Force?
Use of excessive force is tricky because it heavily relies on what the officer deems reasonably “necessary” in a given situation, but there are still laws dictating use of force. Civil rights are violated whenever the force is excessive, even if some amount of force is authorized in the given situation. For example, force is always excessive when a suspect has been secured or otherwise incapacitated by the police, even if they posed a great danger to the police or public before they were secured or incapacitated.
When an officer may justify non-deadly force:
- To prevent escape from arrest or in the arrest of a person who the officer reasonably believes has committed a criminal offense.
- To defend him or herself or a third person from what he or she reasonably believes may be imminent use of physical force by the person they are arresting.
When an officer may justify deadly force:
- To defend him or herself or others from what he or she reasonably believes to be the use of imminent deadly force by the person they are arresting.
- To prevent an escape of a person who the officer reasonably believes is attempting an escape by using a deadly weapon, or may otherwise present a threat of death or serious physical injury to others if not arrested without delay.
- To prevent the escape of a convicted felon from law enforcement custody.
When an officer may justify force to enter private property:
- The officer has a warrant on-hand to enter the property.
- The officer has reasonable cause to believe the person with a warrant for arrest is on the premises.
- The officer has given, or made reasonable effort to give, notice of authority and purpose to the property’s occupants that he or she would enter. An exception can be made if there is reason to believe that giving such notice would present a danger to human life.
- For entering a vehicle: The officer may use force if they believe they are being denied or delayed entry despite given notice, or if he or she is authorized entry without giving notice of authority and purpose.
When an officer arrests someone supervising minor children:
The minor children or child must be placed with a responsible adult approved by a parent or guardian of that child. If it is not possible to place the child with a responsible adult at the time, law enforcement shall contact the department of social services in the county.
Strategies for Police Encounters
Whether you’re being arrested or simply questioned by police, it’s important to understand your rights and know what you should do to prevent escalation, or in the event of an escalation, have what you need to make a better claim for police misconduct. If facing arrest or being questioned by police, you:
- Should not resist arrest: In the majority of situations, you do not have the right to resist arrest, even if the arrest is unauthorized. The consequences for resisting arrest include being found guilty of a Class 2 misdemeanor, and the possibility of escalating the police to use more force against you that they will use your resistance to justify. What many people don’t know is that resisting arrest in North Carolina is not just running away or using physical force, you can “non-physically” resist arrest too. This can include questioning the officer, giving misleading or false information, refusing a parking ticket, and using verbal abuse. With such a broad and vague definition, it’s critical to contact experienced criminal defense lawyers if you’re facing resisting arrest charges.
- Invoke your right to remain silent and seek an attorney: You have the right to remain silent and seek legal counsel — so use it! If possible, you should just stay completely silent, and at the very most, say “I wish to remain silent and would like to talk to a lawyer.” This includes situations like traffic stops; you may be asked for license and registration and possibly to step out of your vehicle, you are not requires to answer questions, so don’t! As the saying goes, “anything can and will be used against you”, and some officers will not hesitate to abuse this. They can go as far to claim they smelled alcohol on your breathe when you spoke, as to arrest you for DWI, so don’t speak! When arrested, the first and only person you should speak with is an experienced lawyer, or somebody you trust who can help you find one.
- Record your interaction with police (in most situations): You have the right to record police officers in North Carolina under most circumstances, so you should use that right to have evidence against the officer(s) if they engage in misconduct or wrongfully arrest you. It is important to be aware that you cannot film or record police in a way that can interfere with their investigation, as that could result in charges of obstruction of justice or disorderly conduct. You also cannot remain recording in an area an officer has told you to move or step back from. It’s important to know your rights here; Officers cannot tell you not to record, and your Fourth Amendment rights dictate that they can’t confiscate or search your phone or device without warrant.
Pursuing a Lawsuit for Police Misconduct
Even with the evidence on your side, challenging police misconduct with a lawsuit is not an easy task, which is why it’s imperative to have skilled civil rights and criminal defense attorneys on your side. One of the challenges lawsuits for police misconduct have to deal with is the legal concept of qualified immunity, which is a defense law enforcement can raise as a defense pre-trial. Qualified immunity, if granted, can protect a government official, such as a law enforcement officer, from lawsuits alleging that they violated your rights, unless those rights are “clearly established” statutory or constitutional rights. This kind of immunity protects officials from being taken to trial and even having to pay money damages. Generally speaking, the test for receiving qualified immunity is:
- Was the misconduct/violation unconstitutional?
- Was the constitutional right that was violated clearly established at the time of violation?
Making a case against qualified immunity and the many defenses to protect law enforcement officers from accountability is a very complicated and challenging area of the law that requires skilled attorneys. While there are efforts in Congress to abolish this protection, you cannot risk losing your case due to this or any other defense law enforcement uses, so you will need exceptional lawyers. Don’t hesitate to contact the lawyers at Tarlton Polk if you are pursuing a lawsuit against law enforcement officers.