Law enforcement officers have a difficult and challenging job.  They deserve to be treated with respect.  Law enforcement officers deserve respect because they are human beings with emotions and feelings like the rest of us.  However, the law does not demand that respect be given.  Some officers appear not to understand that lack of respect does not warrant an arrest.

The First Amendment prohibits law enforcement officials from arresting people for how they talk to, or yell at the police.  Even speech that is loud, disrespectful, profane, and insulting is protected in most circumstances.  Only words that by their very utterance inflict injury or tend to incite an immediate breach of the peace (“Fighting Words”) are unprotected.  Unless your words amount to Fighting Words, the First Amendment protects the speech that is directed at a police officer from a civilian.

The Supreme Court stated in City of Houston v. Hill that freedom of individuals to verbally oppose police action without risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.  Speech keeps the wheels of democracy running smoothly.  The right of the individual to speak out directly, openly, and immediately against his government is perhaps the purest and messiest form of democratic axle grease.  The ability to oppose or challenge police action is not only a principal characteristic distinguishing a free nation from a police state, it is one of the central benefits of living in a free nation.  In a country where people are unable or afraid to challenge their government’s authority for fear that they will be beaten or arrested, that country has no meaningful way to check and balance their government power.

Despite First Amendment Protection, some law enforcement officers are arresting people for voicing their dissent or even videoing police. The police are generally arresting people for violating laws such as disorderly conduct, refusing to obey an officer, obstructing or delaying an officer, or resisting arrest.  When an officer arrests a citizen because they do not like what they said, this is an invalid arrest.  This type of arrest is called “contempt of cop arrest” or a “cover arrest.”  This type of arrest is by definition police abuse and against the law. They are made with no valid legal reason.

”Cover arrests” are arrests made to help justify or explain an officer’s use of force or other exercise of authority where there may have been no legitimate justification for that exercise of authority.  Some apparent “contempt of cop” or “cover arrests” have been captured on video.  These recordings provide an instructive glimpse of the type of behavior associated with such arrests.  Compared to an officer’s written documentation of the incident, these videos show how the police sometimes twist facts or even fabricate a story to support an invalid arrest and accompanying force.

There are several different harms caused by a “contempt of cop” or “cover arrest.”  These arrests turn lives upside down by subjecting an innocent person to unwarranted police force, intimidation, and being subject to an exercise or level of control that are at odds with a democratic society.  There is sometimes a misunderstanding that for the individual arrested, an arrest for disorderly conduct or resisting arrest or similar minor infraction will mean nothing more than a night in jail and a fine.  However this is not the case.  Abusive arrests are a policing issue that can have a long-term negative impact.  An invalid arrest for a misdemeanor can cost an innocent person thousands of dollars to get dismissed.  Further, the arrest, even if dropped for being seen as invalid, will remain on a person’s national and state criminal record.  Very few people are immune from the adverse consequences of a criminal arrest record.

Officers maintain a widely held perspective that they are frustrated at being seen as the bad guy and feel that they do not get the respect they deserve.  However, when police engage in “cover arrests” or “contempt of cop” arrests they add fuel to the fire of poor community relations.  “Contempt of cop” and “cover arrests” are sometimes an officer’s response to perceived disrespect or are meant to discourage observing, documenting, or challenging officer conduct.  These arrests damage police community relationships which are necessary for effective crime fighting.  Perhaps unfairly, but understandably, even law enforcement officers who have never made“contempt of cop” or “cover arrest” are painted with the same brush by community members who are subjected to or have witnessed abusive actions.  The level of mistrust, stereotyping, and anger on both sides increases between citizens and the police making it more difficult for police officers to safely and effectively protect communities.

When a community sees police officers abuse their authority, that trust is undermined and the relationship between police and the community suffers.  Abusive arrests also waste our taxes and or legal resources.  Resources are diverted from other law enforcement functions to process the arrests of individuals who have offended the arresting officer only to have these charges dropped by the state attorney’s office.  They usually consume resources that could be used by the police department in more productive and constructive ways.  Abusive arrests also have a drain on resources because they often result in civil suits and/or criminal prosecutions that absorb an extraordinary amount of time and money to defend, settle, prosecute, and take to trial.

No one will disagree that “contempt of cop” and “cover arrests” are inappropriate, destructive, and costly.  What can be done to avoid this type of police abuse?  Don’t arrest for “contempt of cop.”  Officers must be thick-skinned and not unduly influenced by the attitudes of persons they contact.  Flunking the attitude test is not a bookable offense.  Officers need to be taught that, contrary to the belief of many, the law says that their jobs do require that they take verbal abuse occasionally.  Furthermore, people are legally allowed to document what police are doing when they are interacting with the public. Officers need to be taught how to protect their own safety and the safety of their fellow officers, as well as how to convey the authority they need to effectively do their jobs in the face of rude or irate individuals.  They need to perform their duties without being the provocateur or instigator.

The most important factor in creating a culture that does not tolerate improper arrests is the leadership within a law enforcement agency.  Police culture must be changed from the top down.  If abusive arrests are occurring routinely in a law enforcement agency, or if “contempt of cop” or “cover arrests” are not viewed as abusive by the command, stopping such arrests will require more than a reiteration of a policy.  The leadership of the agency usually a chief, sheriff, or commissioner creates and enforces the expectation that abusive arrests will or will not occur.  Whether the sheriff or chief follows and enforces the rules running the department is closely watched by his or her subordinates.  Who the sheriff hires, promotes, and disciplines is a critical signal of the type of behavior that is sought after and rewarded.

The majority of law enforcement officers in this country perform their difficult occupations with a respect for the law and the community.  However, there are some officers who believe that the power of their job elevates them to a different position then you and me…above the law.  When an officer acts in a manner contrary to the law, he or she is engaging in police misconduct.

It is a violation of your rights for an officer acting under the “color of law” to deprive you of any right protected by the Constitution or laws of the United States.  Police misconduct prohibited by these laws includes excessive force, sexual assault, intentional false arrest, and the intentional creation of evidence resulting in a loss of liberty to another.

Most of us think that we could never be a victim of police misconduct because we obey the law.  In my practice, I commonly encounter the mentality that only criminals have run-ins with law enforcement officers.  Bad things only happen to bad people right?  The scary truth is that we are all potential victims.

Click here to view the embedded video.

Consider a California woman, who in 2007, was pulled over by an LAPD officer for allegedly violating a traffic ordinance.  After detaining the woman for the traffic violation, the officer sexually assaulted her and held his firearm to her head.  The LAPD officer pled guilty to this crime.  Clearly, this woman was not a bad person nor was she a criminal in any sense.  Just as you and I do every day, she was simply driving her car down the road.

You could also become a victim of police misconduct performing your job.  A nurse in a busy Chicago emergency room learned this lesson the hard way.  She was arrested by the police for failing to perform a blood test on a man suspected of driving under the influence.  The nurse explained to the officer that she had no problem performing the test; however, hospital policy required that the suspect be admitted to the hospital before the test could be administered.  Annoyed that he did not get special treatment, the officer placed the nurse in handcuffs, walked her outside and placed her in the back of a patrol car for 45 minutes.  She was later released because requiring the police to follow hospital policy is not a crime, nor is failing to perform tests ordered by a cop.  The nurse was treated for injuries to her wrists as a result of the arresting officer placing the cuffs too tightly.   Despite her requests, the officer refused to loosen the handcuffs during his brash display of power.  Handcuffs are known to cause nerve damage to the hands when placed too tightly.  Incidentally, the arresting officer was caught on video laughing about her arrest.

Imagine becoming a victim of police misconduct while you are trying to report a crime.  It happened in Oklahoma City.  A 35-year-old social worker was arrested after she attempted to alert the police to a crime in progress.  Eyewitness accounts describe her as being placed in handcuffs and lying on the ground when the police deployed a Taser on her.  The police admit to tasering her at least 5 times but witnesses describe that she was tasered 20 times.  The social worker died on the scene and it remains unclear as to why the officers arrested her in the first place.

The above stories describe people who in the course of their everyday lives became victims of police misconduct.  Not one of them committed a single criminal act, yet the victimization they suffered at the hands of law enforcement was in fact criminal.  These victims are more like you and me and less like the hardened thugs who “get what they deserve” like we see on popular television shows.

Police misconduct can also occur when officers make false statements.  Take for example a Hillsborough County, Florida Sheriff’s deputy who recently resigned after an internal affairs investigation revealed that he forged the signatures on sworn reports at least 36 times.  Basically, he fabricated the statements of witnesses and victims in order to arrest and charge at least 36 people.

Take into account a series of incidents that occurred in Cook County, Chicago. There, an officer who had just received commendations for the most DUI arrests in the department.  This officer was himself arrested and now faces felony perjury charges for lying in his arrest reports.  His untruthfulness led to the conviction of at least 37 people.  The Cook County State’s Attorney’s office had to drop 156 arrests made by this officer once his dishonesty was discovered.

If you were on a jury deciding the fate of someone charged with a crime, would you believe that the arresting officer was lying about what happened?  What if you were one of those unfortunate 37 people in Cook County?  Do you feel confident that a jury would believe your story over that of an officer’s if your liberty was at stake?

Think about how disturbing the following scenario is:  You are driving home from work and get pulled over by an officer.  Although you did not have a drop of alcohol to drink, the officer tells you that he “detects a strong odor of alcohol coming from your body.”  How could you disprove it?  What evidence could you come up with to show that the officer was wrong and that he did not smell alcohol? You can not refute a sense of smell.  You would be arrested and facing criminal charges which at the least would cost you thousands of dollars to defend.  This happened to a client of mine who was returning home late one night after he had been called to the hospital to perform emergency surgery on a patient.

These are just a small sampling of the reports of police misconduct in this country.  I have represented doctors, pilots, military officers and even other police officers who have been victims of police misconduct.   The bottom line is that a police officer’s misconduct represents a danger to you and your community.  You, your mother, your father, a friend, or your child could be the next victim.  A society that allows its citizens to be victimized by the police is not a safe society in which to live.

So who is policing the police?  You are.  As citizens, victims, voters and jurors, we determine how severely and frequently law enforcement departments can violate our rights before we stand up and make them stop.  We set the standards for safety in the community and we determine when enough is enough.

As a citizen, if you observe misconduct, you need to report it.  You need to let the media know what you saw.  You need to make our elected officials aware of what is happening and place them on notice of what is going on in their agencies.  Furthermore, you need to ask that this conduct be investigated by reporting it to the FBI and the Internal Affairs departments within the agency in question.  If you choose not to get involved, you ratify the conduct and become part of the problem.

As a victim, you need to enforce your rights.  Otherwise, you send the message that you don’t care about your constitutional rights or the rights of your friends and family.  You are telling the law enforcement agency that is ok to brutalize us, fabricate evidence against us, or simply arrest us to teach us a lesson.  Police officers are often asked, not why they acted in violation of someone’s rights, but why they thought they could get away with it.  The answer is simply that they have gotten away with it many times before.

As a voter, you can elect politicians who enforce discipline within our law enforcement agencies, investigate complaints, and punish violators.  As a voter, you can choose not to vote for, or even campaign against, a politician who allows his law enforcement agencies to victimize the public without punishment.

As a juror, you need to make sure the victims are compensated fully.  Violators must know that their misconduct will result in having to make their victims whole.  A jury who refuses to compensate a victim fully sends the message to the police that their conduct is tolerable in our society.  Jurors who provide full justice for victims and against those who violate our rights deter future misconduct.  Complete justice for the victim puts the police on notice that they are not going to get away with what they know is wrong—not even a little bit.  When violators know that they will be held fully accountable it makes society safer for all of us.

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]]> http://www.twwlawfirm.com/news-and-press/protestors-march-against-police-brutality/feed/ 0 http://www.twwlawfirm.com/news-and-press/press-releases/october-15-2009-national-seminar-on-police-misconduct/ http://www.twwlawfirm.com/news-and-press/press-releases/october-15-2009-national-seminar-on-police-misconduct/#comments Mon, 19 Oct 2009 20:59:00 +0000 Keith Weidner http://www.twwlawfirm.com/?p=765

Keith Weidner attended a seminar in Seattle, Washington on October 15, 2009. The seminar was hosted by the National Police Accountability Project (“NPAP”).  Lawyers from across the nation met to discuss trial practices specific to police misconduct.  The NPAP was founded in order to end police abuse of authority and is made up of lawyers who exclusively represent victims of police misconduct.