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Criminal Procedure

Constitutional Violations II: Other Remedies Against Official Misconduct . Chapter 11. Accountability for

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Criminal Procedure

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    1. Criminal Procedure 7th Edition Joel Samaha Thomson-Wadsworth Publishing

    2. Constitutional Violations II: Other Remedies Against Official Misconduct Chapter 11

    3. Accountability for “Official” Illegal Acts A wide range of remedies exists to hold officers, departments, and governments accountable for illegal acts. Some affect the determination of guilt during the criminal trial (exclusionary rule and entrapment, as discussed in Chapter 10). Some are handled through manners external to the trial process. Remedies aren’t mutually exclusive; all can be pursued at the same time.

    4. Remedies Against Officers Remedies against officers that aren’t available in the criminal trial case against defendants result from three separate actions: Criminal law—Prosecuting the officer. Civil law—Suing the officer, the police department, or the government. Internal departmental review—Disciplining the officer outside the judicial system.

    5. Criminal Misconduct Although most police misconduct is criminal, most police officers aren’t charged, convicted, or punished because: It’s hard to prove “intent” beyond a reasonable doubt, especially when officers “honestly believe” their acts are lawful. There’s a lack of sympathy for possible criminals and/or those they associate with. Prosecutors and juries are unwilling to convict officers for “doing their job.”

    6. Civil Actions Most plaintiffs who sue officers and governments want compensation (collection for damages) for injuries caused by police misconduct. Civil action can be brought about in state or federal courts. Plaintiffs can sue individual officers, superior officers, whole departments, and/or the government represented by the department. Laws on damages vary depending on who is named as defendant.

    7. Suing U.S. Officers and the U.S. Government Lawsuits against individual federal law enforcement officers are called constitutional tort (Bivens) actions. Lawsuits against the federal government for their officers’ constitutional torts are called Federal Tort Claims Act (FTCA) actions.

    8. Suing U.S. Officers—Bivens Actions In Bivens v. Six Unnamed FBI Agents (1971), the Court established that people have the private right to sue individual federal officers for violations of their constitutional rights. In doing so, plaintiffs must prove: Officers acted with apparent legal authority. Their actions deprived plaintiffs of their constitutional rights.

    9. Qualified Immunity According to the defense of qualified immunity (a “good faith” type approach), individual officers can’t be held personally liable for official action if their action meets the test of “objective legal reasonableness.” Reasonableness is measured by legal rules “clearly established” at the time of the act. It’s difficult to win Bivens cases.

    10. Suing the U.S. Government Plaintiffs can pursue FTCA actions to sue the U.S. government. Sovereign immunity is waived in Federal Tort Claims Act (FTCA). The U.S. government’s “deep pockets” make FTCA actions attractive. Plaintiffs can pursue both FTCA and Bivens actions.

    11. Suing State Officers Plaintiffs can sue individual state officers in two kinds of actions: state tort lawsuits and federal U.S. Civil Rights Act lawsuits.

    12. State Tort Actions Most illegal police acts are also state torts. Tort law gives injured plaintiffs the right to recover damages. The right to recover damages for injuries caused by officials’ torts has to be balanced against law enforcement’s job of protecting the public. Officers are liable only for “willful or deliberate wrong” (defense of official immunity).

    13. U.S. Civil Rights Actions § 1983 Actions Plaintiffs can go into federal courts to sue state, county, and municipal officers for violations of their federal constitutional Rights as stated in Title 42, Section 1983, of the Civil Rights Act of 1871. Liability is for deliberate (not negligent or accidental) acts of officers. Liability may be limited by the qualified immunity defense (same as Bivens and FTCA).

    14. Suing State and Local Governments Plaintiffs have two options in deciding to sue state and local governments instead of (or in addition to) suing individual officers: They can sue governments in state courts for the torts of their officers. They can sue governments under the U.S. Civil Rights Act.

    15. State Tort Actions Against State and Local Governments Under the doctrine of respondeat superior, state and local governments and their agencies are liable for the torts of their employees. Liability extends only to torts committed by employees acting within the scope of their employment. Not all states have adopted respondeat superior.

    16. Vicarious Official Immunity Governments of states without the doctrine of respondeat superior use the defense of vicarious official immunity. Police departments and local governments claim the official immunity of its employees. Courts apply a balancing test of local government liability. This test balances two elements: The need for effective law enforcement, and The need to avoid putting the public at risk.

    17. US Civil Rights Actions Against State and Local Governments It is more complicated to prove government liability than individual liability. Elements of state and local government liability include: Officers acted according to either officially approved written policies or unwritten customs. Officers’ actions violated the plaintiff’s constitutional right.

    18. Law Enforcement Failure to Protect According to the “no-affirmative-duty-to- protect rule,” law enforcement has no constitutional duty to protect individuals from each other. The special-relationship exception to the rule holds that people in custody have a constitutional right to protection. Some courts have created another exception—the state-created-danger exception.

    19. Suing Judges Judges enjoy absolute immunity from civil suits, meaning they can’t be sued even if they acted maliciously and in bad faith. The only remedy against misbehaving judges is either impeachment or, if they’re elected, voting them out of office.

    20. Suing Prosecutors Prosecutors have functional immunity— immunity depends on their function at the time of the act. They have absolute immunity when acting as advocates for the state in criminal prosecutions. They have limited liability when acting as administrators or investigators.

    21. Hurdles to Suing Officers and the Government People who sue the government or its officers rarely win, partly because: It’s expensive. It takes a long time. Juries are more likely to believe police officers than plaintiffs. Officials have absolute, qualified, and/or official immunity. Officers have no affirmative duty to protect. Some cases are frivolous.

    22. Administrative Remedies Accountability for official misconduct isn’t limited to lawsuits. The most common procedures for responding to claims of police misconduct are administrative review and discipline outside the courts. There are two types of administrative review: Internal affairs units (IAU) External civilian review

    23. Internal Review Most large and mid-sized police departments have special internal affairs units (IAU) that review police misconduct. Internal review consists of four successive stages: Intake Investigation Deliberation Disposition

    24. Deliberating Cases The deliberating officers decide among four dispositions: Unfounded—The act didn’t take place. Exonerated—The act took place but was justified, lawful, and proper. Not sustained—There’s not enough evidence to prove the allegations in the complaint. Sustained—The evidence proved the allegations.

    25. Disciplinary Action From Internal Review If the allegations of misconduct were sustained, officers recommend disciplinary action to the chief, who makes the final decision. Possible sanctions include: Oral or written reprimand Transfer or demotion Retraining Counseling Suspension or Dismissal Fine

    26. Criticisms of Internal Review Internal review has its critics. Police can’t police themselves. Some parts of the public don’t accept the legitimacy of self-supervision.

    27. External Review External review was established to counter criticism of the internal review process. The point in reviews when civilians (non-officers) participate varies. Citizens may be involved in: Collecting facts Reviewing investigation report Recommending disciplinary action to chief Reviewing chief’s disposition

    28. Police Opinions of External Review In general, police dislike the external review process. It interferes with police independence. Outsiders don’t understand police work. It pierces the “blue curtain” that hides “real” police work from view.

    29. Effectiveness of External Review Sustained rates from external review are similar to internal review. The definition of “effectiveness” varies. It could mean: Controlling police misconduct Resolving complaints to satisfy complainants Preserving public confidence in police Influencing police management by providing “feedback” from citizens

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