1. Law Offices of John L. Burris john.burris@johnburrislaw.com 1 SELECTING AND PROSECUTING POLICE MISCONDUCT CASES Proving Your Case A Presentation for Southern University Law Center September 23, 20011

2. Law Offices of John L. Burris john.burris@johnburrislaw.com 2 FEDERAL STATUTE 42 U.S.C.S §1983 42 U.S.C.A § 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 §1983 continues to be good law. Congress enacted a minor amendment in 1996 by inserting a provision, which provides immunity for judicial officers from injunctive relief, unless some previous act or omission resulted in violating a declaratory decree.

3. Law Offices of John L. Burris john.burris@johnburrislaw.com 3 42 USC 1983Incorporates the Bill of Rights First Amendment: Freedom of Press, Free Speech, Freedom of Assembly Fourth Amendment: Freedom from unreasonable searches and seizures, Fruit of the Poison Tree Fifth Amendment: Right to remain silent, Right to counsel custodial interrogation, Miranda Warnings Sixth Amendment: Right to counsel at all critical stages of the process Eighth Amendment: Freedom from excessive bail, Freedom from cruel unusual punishment Fourteenth Amendment: Due Process right to fair process, makes the first 10 Amendments- aka The Bill of Rights- applicable to the individual states.

4. Law Offices of John L. Burris john.burris@johnburrislaw.com 4 TYPES OF 1983 VIOLATIONS Excessive force Wrongful death Chocking/asphyxiation Death in custody Illegal entry/warrantless searches e.g. cars, houses and persons Negligent supervision/failure to discipline Carotid hold Mental/Emotional Impairment Jail suicide High speed car chases Tasers Police shootings Sexual assault Jail beatings Restraint Asphyxia

5. Law Offices of John L. Burris john.burris@johnburrislaw.com 5 Fact Pattern The incident took place on January 2, 2006. At approximately 11:30 p.m, law officers arrived at Claire Peters’ home to investigate a 911 call for medical attention. Ms. Peters initially refused their request to enter, because she had requested medical attention for her 27 year old grandson, Howard Peters. The officers pushed her aside, stormed the house, and made their way to the back room where Mr. Peters was seated in an arm chair. Howard Peters stood up when the officers entered the room and they immediately rushed him. The officers threw Mr. Peters to the floor, where he landed face-first. Peters was face-down on the floor with his hands restrained behind his back, when the officers began punching, kicking, and simultaneously prodding him with a taser gun. Howard was screaming. Family members pleaded with the officers to stop the torture. Finally, an officer yelled, "He's not breathing!" and everything went silent. Officers flipped him over to his back and attempted to administer CPR with breathing into his mouth. Another cop forced the family out of the room and out of the house, while other officers assisted the revival efforts. Howard was pronounced dead on the scene. The county autopsy listed the cause of death as cardiac arrest resulting from an enlarged heart, influence of cocaine, and tazer shock. A second autopsy authorized by the family concluded that the cause of death was restraint asphyxia as well as tazer shock. Howard Peters was a low-level dope dealer with misdemeanor arrests but no felony convictions. Peters had a positive relationship with his mother, father, and son for whom he paid child-support and regularly participated in the son’s activities. His limited employment history included a stint as a security guard as well as other unskilled jobs.

6. Law Offices of John L. Burris john.burris@johnburrislaw.com 6 IDENTIFY THE CLIENT At the initial interview one must determine who the client is. Determine if a minor was involved, if so a Guardian ad Litem is needed. In death cases, determine who the heirs of the decedent are. (spouse, children etc). Estate for decedent may need to be established to bring action for decedent. In Federal Civil Rights wrongful death cases, even where there are children, parents of the decedent can bring a claim under the Fourteenth Amendment. Keep in mind that there can be potential conflicts when a spouse or parent has been absent from the decedent’s life and then surfaces after the decedent’s death. Domestic relationships can present particular challenges where either party has not been divorced from a prior relationship. Bring all the potential clients to the table; otherwise, it will be difficult to resolve the case. May need conflict waivers from all the parties. A decedent’s step parent has no claim unless they have adopted the decedent or can demonstrate that they were financially responsible for the decedent.

7. Law Offices of John L. Burris john.burris@johnburrislaw.com 7 Commencing the Investigation An investigator should be retained immediately and the lawyer should closely supervise the investigation. Both Lawyer and investigator should visit the scene and interview all witnesses. The scene must be diagramed and/or photographed. The investigator must determine whether the witnesses have given statements to the police and whether the statements were memorialized. If witnesses are at the scene, the lawyer should interview them in the presence of a third person. This cautionary measure accounts for possible impeachment. The lawyer should ask why the client was in a position to be confronted by the officer(s). Pay attention to the presence of alcohol, drugs, and weapons. Determine the client’s or witnesses’ criminal records. The investigator should be discouraged from taping favorable witnesses. These statements may be discoverable.

8. Law Offices of John L. Burris john.burris@johnburrislaw.com 8 Commencing the Investigation Contd’ Client and witnesses strengths, weaknesses, and mental stability, demeanor, and background must be considered. At this early stage consideration should be given to damages by gathering family photographs, employment records (loss of income), and evidence of emotional distress and loss of consortium. As for possible defendants be aware of officers who were present but who did not participate, but who could have stopped the abusive conduct. These officers may share responsibility.

9. Law Offices of John L. Burris john.burris@johnburrislaw.com 9 OBTAINING POLICE, MEDICAL AND/OR CORONER REPORTS Acquiring official reports about the incident as soon as possible is critically important. The client should sign an authorization form allowing the lawyer to obtain police reports, medical reports and /or the coroner’s report. Typically there is a modest fee for the documents and it generally takes 6 to 8 weeks to get the coroner’s report. The lawyer can have direct contact with the pathologist. If the death has unusual factors, a second autopsy may be warranted or at least a second opinion should be obtained. Potential mistakes can occur in those cases where the cause of death is subject to interpretation such as “excited utterance”, cardiac arrhythmia, asphyxia, and all taser related deaths.

10. Law Offices of John L. Burris john.burris@johnburrislaw.com 10 OBTAINING POLICE, MEDICAL AND/OR CORONER REPORTSCONTD’ The body should be photographed for injuries. Have a prepared demand letter, because some police agencies are unwilling to provide police reports based only upon the signed release from the family. Assuming the police refuse to provide police reports upon request, a public record should be made. Louisiana Public Records Act Title 44 Chapter 1: provides that the documents should be made available for copying, inspection etc. eq.This statutory scheme allows you to obtain the police report without having to first file the lawsuit and initiate discovery. However, if this fails you should make a record maintaining a file detailing your efforts at getting the reports/documents. This will protect against a Rule 11 motion if a lawsuit is filed without the reports. There may be a similar statute in this jurisdiction.

11. Law Offices of John L. Burris john.burris@johnburrislaw.com 11 Factors To Consider In Deciding Whether To File the Case Client Credibility: alcohol, drugs, prior conviction Witnesses: interest, bias, logistics, location, observations, corroboration for client story, other independent physical evidence Officers: conduct-objective reasonableness standard Damages: proof, economic loss, emotional distress, physical injuries, medical, photographs, amount Emotional Distress Claims: emotional damages, psychological Claim: months from date- include statute, list parties Complaint: state1983 1985 or federal 1983

12. Law Offices of John L. Burris john.burris@johnburrislaw.com 12 Filing in State Versus Federal Court State Court Advantages: unanimous verdict not needed, closer relation between police and court, in local community where it occurred. State Disadvantages: discovery rules stricter, pay jury fees, not as orderly, longer to get to trial. Federal Advantage: orderly, liberal discovery, knowledgeable judges, feds use State personal injury statute of limitations. Negative Federal: stricter rules, judges more orderly, unanimous verdict.

13. Law Offices of John L. Burris john.burris@johnburrislaw.com 13 Areas Of Inquiry for Voir Dire Police credibility Excessive or unreasonable force Professionalism High standards Accountability Mentally impaired Mistake/ compounded Race and racial stereotypes, "driving while Black” Damages: emotional distress Empowering Words: What is your opinion of the New Orleans Police misconduct cases? Do you generally believe the police and prosecution do a good job?

14. Law Offices of John L. Burris john.burris@johnburrislaw.com 14 Presentation of the Case Opening statement: client tells story, theme, acknowledge weaknesses Presentation of witness: pay attention to the order of witnesses Don’t run front difficult negative issues such as drugs, guns, including race. Make it easy for the jury to understand why they must award damages e.g. emotional distress Expert witnesses: Pathologists, ballistics, police practice, toxicologists, taser, psychiatrists, psychologists Evidence: photographs, charts, ballistics, toxicology, drug tests, video

15. Law Offices of John L. Burris john.burris@johnburrislaw.com 15 Closing Argument Tell the story Tie everything together: merge evidence with law and fact and incorporate your theme. Burden of proof –preponderance of evidence Challenge credibility of officers with witness or evidence. You always need a tie breaker or turning point in the case such as an independent witness. Discuss police accountability Damages: give an amount or not? Summary Rebuttal

16. Law Offices of John L. Burris john.burris@johnburrislaw.com 16 Sources Louisiana Public Records Act: http://www.thefirstamendment.org/capra.html Freedom of Information Act: http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm#both Police Misconduct: Law and Litigation, Michael Avery, Karen Blum, David Rudovsky, Thompson Westgroup, October 2005