Trickle Down Theory

No, this is not a note on economic theory -- far be it for me to speak on that -- I'm still waiting for the trickle down to get to me since Ronald Reagan! Rather it is about the abuse of power in government and how that truly trickles down to the police officer and citizen on the street. We have been through eight long years of George Bush and we have seen the use of torture, Guantanamo Bay, secret prisons, the denial of Habeas Corpus and a president who signs so-called "signing statements" effectively exempting him from the law like they are going out of style. We have seen a president who marched this nation into a war with Iraq on the pretense that the country had weapons of mass destruction. When it was determined that no such weapons existed, the president was then seen and heard to make a joke about in at an annual press corp dinner. We have a vice president who states that he simply doesn't care about the fact that 2/3's of the American public don't think the war is worth it. What has all this got to do with police misconduct? A lot. The president has supreme power -- he truly is the top dog. But when the top dog decides he doesn't have to play by the rules, that he can simply ignore the constitution, that he and his cronies in the White House can be so arrogant that they make jokes about war one day and then declare they don't care what America thinks the next day, the model has been set. Not for all police officers, but for those officers who have an inclination anyway to use their power on the street illegally -- just because on the street, they HAVE THE POWER and are top dog. When the bar is lowered so much with regard to safeguarding human rights by those at the top of the system, when the constitution is looked at by those at the top as a problem in pursuing their policies, when those at the top think the law does not apply to them, those attitudes trickle down to the cop on the street who sees his badge and gun as his ticket to ride rough shod over citizens -- in fact, it gives them the green light to do so, believing they can get away with it. Then when citizens are confronted with these types of cops who have no respect for the law, who hear them lie under oath in court against them, many citizens begin to lose faith in the system, faith in the rule of law and faith in the court system. When citizens lose faith in our system, the very foundation of it begins to crumble. Let's hope that the foundation has not been damaged beyond repair. Let's hope the trickle down does not become a flood. Please make sure and vote for change this November.

Welcome to my BLOG!

Thank you for coming to my blog and reading my first article which will be one of many concerning a recurring problem in our society-- that is the problem of police misconduct. Next to murder, rape and serious crimes of violence, I consider false arrest by law enforcement authorities to be one of the greatest assaults upon an individual and their integrity that can ever occur. First however, I must state that I believe that the majority of law enforcement officers are honest, hard-working and decent people who risk their lives, often doing a job no one else would care to do; further I believe that the vast majority of officers only want to see the best results occur within our criminal justice system. But I also know from 24 years of experience in the legal field that there is a certain thug-like element existing within a number of police forces throughout the country that continually and routinely think nothing of violating the constitutional right of individuals. They think nothing of arresting an individual and bringing a case through the criminal justice system, not because they really believe in the merits of the case, but rather, just to "close the case". When they go to Court and swear under oath to tell the truth, they commit perjury without thinking twice about it. This is simply intolerable in a civilized society.

Many individuals cannot understand the mental torment and anguish that occur to people who have been falsely arrested and imprisoned, even if that period of incarceration only lasts for two to three days. There is no way for someone who has not gone through that experience, to truly feel the fear, the isolation, degradation and complete feeling of helplessness that occurs to people when they have been the victim of a false arrest.
During the course of this blog, we will discuss in more detail what actually is a case of "false arrest" and how it relates to another constitutional rights violation known as "false imprisonment". I will also discuss cases concerning police officers use of "excessive force" against individuals during the course of arrest as well as cases of "malicious prosecution". We will also discuss what is necessary to hold municipal corporations liable for violations of civil rights as well. I hope you will continue to join me on my blog and feel free to become a contributor on any relevant issues that you choose.

A Tragic Policy Long Enforced by the City of Detroit

The City of Detroit Police Department, particularly the homicide section, for years and years employed and knowingly enforced a policy of actually arresting witnesses, not suspects to a homicide. Whether or not it was a result of being under tremendous pressure to solve crimes (for years Detroit had the dubious title of "murder capital of the world"), or because the homicide section was understaffed, or whether it was a simple question of laziness on the part of certain investigating officers, the result was the same – the blatant and continuous violation of the constitutional rights of the citizens of Detroit who were being arrested without probable cause. In many instances the investigating officers from the homicide department did not even know whether or not the people they were arresting actually were "witnesses" to the crime of homicide but they may have only heard through hearsay or had a hunch that these individuals knew something about a murder that had been committed. Suffice it to say, that a witness to a crime cannot be arrested in order for the police to investigate a crime, absent a court order. Over the years and through the reigns of numerous police chiefs, the Detroit Police Department arrested hundreds if not thousands of witnesses, without first getting court orders to do so. This practice continued for so many years in the community that many people thought there was actually something called a "72 hour" rule, meaning that the police could legally hold someone for up to 72 hours before letting them go without facing liability. This is not and never was, the law.
From 2001 through 2006, I along with several other attorneys brought numerous cases of false arrest seeking compensatory damages for witnesses who had been arrested under these circumstances. Dozens of people received substantial remuneration for this blatant violation of their constitutional rights by the Detroit Police Department which resulted in multimillion dollar settlements.
From the conditions giving rise to their initial arrest, throughout the time that many of these witnesses were incarcerated, until the time that they were released, the insult upon their integrity was horrendous. First, many times homicide investigating officers would appear at a scene of the homicide and merely start arresting people who they thought may know something abut the murder; it didn't matter whether the police actually thought they had a suspect on their hands. For one to be arrested in front of one’s neighbors and led out from their homes in handcuffs and placed in police cars was humiliating enough; many neighbors would become suspicious and rumors would naturally start that "so and so" has been arrested for murder. Usually, these people were released after 2 or 3 days – but the suspicion lingered on, often making it intolerable for them to live in the same neighborhood anymore; some even moved out of state to get away from the stigma of the arrest. These witnesses were then housed in terrible conditions at the main police headquarters 1300 Beaubien Street. Once at the same headquarters where numerous police chiefs sat only floors away, they would then be placed into holding cells that can only be compared to something out of a gulag. Roaches, vermin, lack of running water or other sanitary conditions, stone benches to sleep on, were just some of the problems. One officer who had worked for the homicide section for decades described under oath that the cell conditions under which these individuals were held was deplorable. These conditions, along with lack of adequate heat in the winter and adequate ventilation during the hot summer months, came to the attention of the United States Department of Justice in 2002-2003. Shortly thereafter all holding cells at this facility were closed because of the horrid conditions that existed there. Additionally, many who were held were denied phone calls with the outside world sometimes for up to two to three days; families would call about their whereabouts and were often given no information at all, even whether their loved ones were in police custody or not! In the vast majority of the cases, after our clients were kept under such unbearable conditions, they would then be simply "pushed out the back door" of the Detroit Police Department and told to walk home - It didn't matter if it was raining, snowing or in the middle of the night – they were just told to leave – the ultimate insult, the final part of this arrogant and blatantly unconstitutional policy and practice of the Detroit Police Department.
At the same time that we were bringing these lawsuits, the United States Department of Justice was investigating the practices of the Detroit Police Department of arresting witnesses, among other concerns. During the times that our lawsuits were pending, the City of Detroit entered into Consent Decrees with the Department of Justice. These Consent Decrees contain numerous conditions the City of Detroit Police Department must comply with in order to bring their practices and procedures within constitutional requirements. Significantly, sections of one Consent Decree dealt specifically with the requirements of what makes a lawful arrest and requires the Detroit Police Department to arrest only upon probable cause. For years after the Consent Decrees were signed, the City still argued about even the definition of "probable cause", something law students learn in their first year of school. Recent statistics suggest that the Detroit Police Department may have finally got the message and may have stopped their long standing practice of arresting witnesses. Only time will tell if the Detroit Police Department decides to follow even the most basic elemental principles of our Constitution.

What is a False Arrest Case?

There are numerous ways that a case for false arrest entitling a person to compensatory damages may arise. There are two ways individuals can be arrested: with a warrant or without a warrant for their arrest first being issued. Either way however an arrest must be made upon what is known as "probable cause". In order for a law enforcement officer to arrest someone without a warrant first being issued, that officer must make a determination that there is "probable cause" to believe that person has committed a misdemeanor in their presence or has committed a felony. Please note that the law does not expect the police officer on the street to be a prosecutor, a lawyer or a judge or jury. However, the law does hold the officer responsible for only making arrests with "probable cause" – this means that based on the facts presented to the officer, the officer could reasonably believe that a person has committed a crime. It does not leave room for hunches, speculation or simple intuition. If it can be established that a reasonable officer after reviewing the same facts would have acted the same way as the officer did in making the arrest, it will be difficult to maintain that case in Court; in fact, the case may be thrown out before even having a trial.
The second way a person can be arrested (as many times often is the case) is after an investigation has been done and a warrant for their arrest has been signed by a Court. Cases of false arrest where warrants have first been issued are sometimes more difficult to prove. In order to get a warrant, the police department and prosecutor first have to convince a judge that probable cause to believe that a person has committed a crime exists. However just because they have been able to do this, does not mean that there can be no claim for false arrest. For example, if it has been determined that in order to gain a warrant for a person’s arrest a police officer has given false facts to the court upon which it will consider whether or not to issue a warrant, a claim for false arrest can be brought against the officer. Additionally, if an officer has information within his possession that tends to show that the person is not responsible for committing the crime (exculpatory evidence) and that officer fails to present that information as well to the judge considering the warrant, this may also provide a situation where a case for false arrest can be maintained.
However, assuming a person is actually charged with a crime, it is very important to know that in Michigan and most other states, a person has to have a successful outcome in the underlying criminal case first, before they can maintain a case for false arrest in a civil court (a recent case by the US Supreme Court has put a wrinkle in this rule which may require a person wrongly convicted and who has appealed their conviction to file their civil case for false arrest before their conviction is overturned in the event the failure to do so would result in their claim being time barred under the statute of limitations). A finding of guilty by a judge or jury, or if one enters into a plea, even to a lesser charge, will usually act as a complete bar to the bringing of a false arrest case that arose out of those same facts later. Therefore anyone under criminal charge who believes they have been unjustly accused and who seeks to file a false arrest claim in the future needs to be absolutely sure that they are getting the best criminal representation possible. That being said, merely winning a criminal case does not automatically mean that one is entitled to win a civil suit for false arrest. The standards of proof in a criminal case area vastly different from the standards of proof in a civil case for false arrest. But that, is the subject of a future article!