There are three ways to complain about brutality or misconduct by police officers:

• internal complaints,

• criminal complaints, and

• civil suits

A person can use any one or a combination of these avenues. However, sometimes a police department will not conduct an investigation while there is a pending criminal complaint against the police officer.

Caution: If there are criminal charges pending against you, you should speak to your criminal defense attorney before making any type of complaint about police conduct. As a criminal defendant, you have the right to remain silent, but you give up this right when you complain. An internal complaint may hurt your criminal case because you will need to discuss the facts of the incident with the police department. It also could provide an incentive to the police department to prepare your case more thoroughly to try to obtain a conviction against you. Your criminal defense lawyer can give you advice on whether and when to seek a criminal complaint against a police officer or to file a civil rights lawsuit.

 

INTERNAL COMPLAINTS TO POLICE DEPARTMENTS

All police departments have methods of taking civilians’ complaints about police officers. Usually these complaints are referred to as internal affairs complaints. These complaints are investigated by other police officers. In larger police departments, there often is a separate division that handles complaints.

Positive Aspects of Internal Complaints

Filing an internal complaint is the only avenue that can lead to discipline or termination of a police officer other than a criminal conviction of the officer, which, as discussed below, very rarely happens.

Even if an internal complaint is not sustained, it usually stays in the officer’s personnel file. In a properly run police department, the fact that an officer has attracted a large number of complaints should trigger closer scrutiny. Most police officers, even those who make many arrests, receive no more than one internal complaint in their entire career. An officer who receives multiple complaints is doing something differently than other officers.

A complaint puts the police department on notice of a police officer’s behavior. Because police officers work on the street, supervisors do not know how an officer interacts with the public unless members of the public provide feedback.

We are interested in learning about how people who file internal complaints are treated.

Negative Aspects of Internal Complaints

The investigation is totally internal. The complainant is not given any information until it is concluded. Much of the investigation is kept secret from the person who complained.

Most complaints by non-police officers do not result in a finding of fault, while complaints by superior officers almost always are sustained.

When a police agency does find a police officer is at fault, rarely is it for brutality or an illegal arrest. Most supervisors worry that if they find a police officer violated a person's constitutional rights, the department or officer will be sued. As a result, many agencies would rather discipline an officer for failing to write a use of force report or failing to note the person arrested was injured.

In the uncommon event that an internal investigation recommends significant discipline after a serious act of police misconduct, the discipline is not always upheld. Officers can reduce their discipline by negotiating through the police union or by appealing the decision to an arbitrator..  These reduced penalties are a frustrating trend.. Strong sanctions punish and deter police abuse, while these reduced penalties teach police officers that they can  break the rules without fear. 

The civilian has no right to appeal in most cases. While the police officer can appeal an unfavorable ruling to the Civil Service Commission, to an arbitrator, and to court, the person who complains has no right to appeal an incorrect decision.

If a complaint must be decided based on who is telling the truth—a police officer or a civilian—police departments almost always either find for the officer or conclude that they can’t decide one way or the other. Thus the complaint is “not sustained.”

Other police officers at the scene typically follow the unwritten "code of silence." These officers will not report witnessing a fellow police officer punching or kicking a civilian. The other officers are usually represented by the same union lawyer. These officers either say their fellow officer used reasonable force, or they claim they did not hear or see the beating. Police officers who stand by while another officer beats a person can be legally responsible for the injury, another reason most officers do not truthfully report witnessing a fellow officer using excessive or unreasonable force.

The civilian has no control over this process. The police investigators are not likely to listen to a civilian’s ideas about whom to speak to or how to determine the truth.

 

CRIMINAL COMPLAINTS AGAINST POLICE OFFICERS

Often police misconduct violates criminal laws. Although a police officer is privileged to use force in making an arrest, using force when none is necessary or using more force than is necessary is criminal conduct. However, as explained below, police officers are rarely charged with criminal conduct. When police officers are charged criminally, grand juries are less likely to indict them and juries are not likely to convict them. When police officers are convicted, judges are more likely to give a police officer a light sentence. In giving a light sentence, some judges mention the good the convicted criminal did as a police officer. Other judges’ feel serving time in prison would be more difficult for a former police officer, so they give a lighter sentence. When police officers appeal a conviction they are more likely to obtain a new trial or other relief. The system is tilted in favor of police officers as criminal defendants.

State Criminal Charges

If a criminal complaint is issued against a police officer, it is up to the District Attorney’s office to prosecute the case. The District Attorney (DA) is not required to prosecute, and often he or she decides not to. The DA relies on police officers as witnesses and investigators in all of the cases in the office. This makes it politically difficult for a DA to prosecute a police officer. Often when there is a strong criminal case against a police officer, the DA will ask the Attorney General or a special prosecutor from another county to prosecute. Remember, the DA’s office is likely to have many criminal cases in which the abusive police officer is the chief witness for the DA.

A DA’s office is much more likely to prosecute a police officer for conduct that is outside the scope of a police officer’s job rather than for use of too much force in an arrest. A DA might prosecute a police officer for stealing money from a charity fund drive, for selling drugs, or for committing an off-duty sexual assault. Traditionally DA’s offices have not vigorously pursued police officers for common criminal charges like operating under the influence or domestic violence because these charges and the resulting loss of a driver’s license or license to carry a firearm can prevent a police officer from working. Charges that a police officer abused his authority by using excessive force are typically too controversial for a DA’s office to handle.

Federal Criminal Charges

Police use of excessive force is a federal civil rights violation. These allegations are investigated by the FBI and often are prosecuted by lawyers in the Civil Rights Division of the Justice Department. A federal criminal civil rights prosecution can be very effective. Local police officers are not familiar figures in federal court, so they do not have the same bias in their favor that often exists in state courts. However, federal prosecutors do not take very many cases involving police officers. A federal prosecution may take place if the police misconduct is particularly outrageous. Even then, prosecutors do not take cases unless they believe that they have very strong evidence to support a conviction.

 

CIVIL SUITS

The advantage of a civil suit is that you hire the lawyer, and it is the lawyer’s job to represent your interests. As a client, you work with your lawyer to decide whom to sue and what claims to bring. In consultation with your lawyer, you decide whether to settle the case.

As a plaintiff in a civil suit, you can require police officers and witnesses to attend depositions. A deposition is a formal procedure during which your lawyer questions the police officer or witness under oath while a court reporter records the conversation. Your lawyer can also request documents from the police officer and his or her employer. Your lawyer can develop the evidence. You have more control than you do in an internal affairs process or during a criminal case.

Most civil suits seek money damages. Money can be very helpful to a person who has been injured by a police officer. Often clients do not have health insurance, or they need treatment that is not covered by their insurance. Money can pay outstanding bills, pay for therapy sessions, and permit you to take classes to improve yourself, or help you move from the place where the incident took place. An award of money damages also sends a message that the police officer’s actions are unacceptable.

We believe that awards of money damages cause police departments to improve police practices. Rational administrators will improve police hiring, supervision, and training to avoid future money judgments. Insurance companies often insist on changes in policies after a successful lawsuit as a condition of continuing insurance coverage. Damage awards get attention, which can result in positive changes to prevent further violations of civil rights even though they rarely result in discipline of the police officers involved. Most police officers do not want to be sued, so they will try to avoid the actions that caused a fellow officer to be successfully sued.

 

The Following has been reformatted and has been modified.

 

 

 

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How Do I Report

Police Misconduct?

 

 

If you feel that police have violated your rights, or you’ve witnessed police misconduct against someone else, do not panic. It’s normal to feel intimidated. But responding to misconduct is an essential step towards protecting yourself and your community from future police abuse.

 

There are several steps to the process of combating police misconduct. You must approach them in a calm and organized manner.

 

Step 1: Write everything down

 

This step is extremely important and must be done as soon as possible after the incident.

It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.

In your own words describe everything that happened from the very start of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc. Replay the events slowly in your head to help remember as many details as possible.

Also include witness’s names and contact information and the officers’ names, physical descriptions, car number and badge numbers. If necessary, return to the scene of the incident to talk to possible witnesses. This might also help jog your memory about other important details.

Only include facts that you’re sure about. Be very careful to avoid inaccuracies. These can easily damage your credibility and undermine your important work.

Tip: It’s okay if you didn’t get the badge or car number. An officer’s identity can be established with a time, location, and physical description.

 

Step 2: Consult with an attorney

 

This step is essential if you were arrested following the incident. (If you were not arrested, it’s optional but recommended.)

Victims of police misconduct are often forcefully prosecuted in order to gain leverage in case the victim files a lawsuit. If you’re caught in a situation like this, you need a good police misconduct attorney immediately. Avoid attorneys who work in many different areas of the law. (Click here for a list of attorneys who specialize in handling cases of police misconduct.)

 

Police misconduct cases are challenging, and lawyers meet a lot of difficult people.

Distinguish yourself by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a smart defendant whose case is worth taking.

Whether or not you were not charged with a crime following the incident, you might still want to pursue a civil suit against the police. An attorney will help you determine whether you have a strong enough case.

Proving police misconduct is extremely difficult. So attorneys tend to choose whether to proceed based on the strength of the evidence, rather than the severity of misconduct.

Such cases are often taken on contingency, meaning that you won’t have to pay any up-front legal fees. Your lawyer only gets paid if he or she wins a settlement from the police department.

Do not get upset if you can’t find an attorney to take your case. Simply proceed to Step 3.

 

Step 3: File a Police Misconduct Report

 

This step cannot begin until all criminal charges and civil actions have been resolved.

Prematurely filing a police misconduct report will hurt your chances in court by revealing too much information to the police.

(Of course, if you weren’t charged with a crime and you’re not suing, file the complaint right away.)

 

The materials you prepared in Step 1 will form the body of your complaint. You’ll be glad you wrote everything down before, because you might not want to file your complaint until weeks or months later.

Where to file your complaint depends on your jurisdiction. There’s usually a citizen review board or an office within the police department that accepts them. Googling “police complaint” + “[name of your town or city]” will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, send your report to both offices.

There might be an official form that you’re required to use. If so, simply transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily.

In some areas you might have to call or visit a police office in order to obtain the proper form. If this is required, avoid discussing the nature of your complaint with any police officers. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they might warn the officers involved, which could lead to a cover-up.

Finally, before sending your complaint, be sure to make copies and keep them in a secure location. Send your complaint by Certified Mail so the police cannot deny having received it.

You should also send copies to your local ACLU and NAACP chapters.

Finally, remember that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency.

Police departments receive many complaints, so your concerns won’t always receive the individual attention they might deserve.

 

Your complaint creates an official record of an incident. It might later be used along with other complaints to illustrate a pattern of misconduct. This information is useful to community leaders working to prevent police abuse in your community. Your complaint could also become relevant if the same officer is accused of additional misconduct. In short, your complaint is important even if you never get a response.