In the wake of George Floyd’s death, it’s important to understand the ways that police are held accountable. There are four overlapping ways that consequences follow bad police behavior.
Administrative discipline is imposed when a police agency writes up an officer or other employee for violating policy. This is similar to what might happen in any workplace. Officers can also be administratively disciplined for using excessive force, violating a suspect or witness’s rights, dishonesty in any capacity, or failing to be polite and professional
When a police officer is disciplined by an oversight body. For example, the the Berkeley Police Department has a Police Review Commission. The PRC is an independent, civilian oversight agency to the BPD. The PRC advises city leaders and the BPD on police policies and investigates complaints by members of the public against police officers. This type of oversight is exists in large jurisdictions like Los Angeles, San Francisco, and San Diego as well.
One important form of collateral discipline is the DA blacklist – also called the Brady list. Whenever the DA’s office believes that an officer is untruthful, they have to disclose that information any time they want to use that person as a witness. They also have to disclose it if that witness’s untruthfulness is exculpatory. And dishonesty is not the only thing that prosecutors must disclose. They must also disclose fabrication of evidence and the use of excessive force. If you are a prosecutor and your arresting officer has been fabricating evidence, your case is dead. DA’s offices keep a list of such officers. Prosecutors cannot use them as witnesses. Putting a cop on this list means that they are useless out in the field. After all, any case they touch is dead. So police agencies must move them off the street and onto a desk. The list prevents officers from testifying. The policeman himself has no say in the matter. There is no appeal. The police agency has no say in the matter, nor do judges or legislators. It’s all up to the DA, who is an independently elected position. Take a moment to think about this. The DA can take a cop off the street, even though the cop works for another agency that may disagree.
Police can be sued if they hurt a person in any way, including violating their constitutional rights even without injury. They have to prove that they were damages by a preponderance of the evidence – meaning it was more likely than not. They do not need a unanimous jury verdict, 9 out of 12 is enough. The point is that civil suits are much easier to win than criminal prosecutions. These require proof beyond a reasonable doubt. And a unanimous jury is required for conviction.
If a person proves a case against a cop, they can get their actual damages: the money they actually spent on legal bills, lost during time off from work, and other measureable damages. They can also damages for emotional distress, which can’t be measured. And finally, the civil court can impose punitives damages on the police, which get paid to the individual. These amounts can be so high that they are effectively lottery tickets.
The law provides incentives lawsuits against the police for violating constitutional rights. For example, the law gives incentive for lawsuits regarding excessive force, overdetention, cruel and unusual punishment, and even wrongful death. The law empowers lawyers to act as private prosecutors. If they can prove a constitutional violation, the police agency must pay their attorneys fees. Even if the victim is already being awarded millions in the types of damages listed above. In fact, if the plaintiff only wins $1 in damages, the attorney must still be paid.
The practical result of all this money is that police are sued all the time for even the most minor complaints. There is literally an army of plaintiff’s lawyers scouring every jail, booking record, and criminal courthouse for even a whiff of a meritorious lawsuit. And most plaintiff’s lawyer are not just independent, they are outright hostile to police.
Since the pot of money is so large, the best plaintiff’s lawyers run sophisticated operations with multiple lawyers, investigators, paralegals, and other staff preparing the case. They have the subpoena power, and can compel testimony from police and other witnesses in the form of depositions. These examinations are taken under oath, with the penalty of perjury. They usually last much longer and go into more detail than witness testimony in criminal court.
Although I personally dislike these kind of lawyers, and must declare my bias, they provide me with a lot of confidence that the system is not racist. If it were, these guys would sniff it out and make a ton of money on it. When they succeed, and a cop is found liable, the other types of accountability follow. A righteous lawsuit will also mean administrative discipline, collateral discipline, and could mean criminal prosecution, if not for the underlying conduct, then for perjury during a deposition.
Police are not above the law. They may be prosecuted in criminal court just like anybody else. They do not have any special privileges or defenses. They are prosecuted all the time for private offenses in their personal lives, such as domestic violence, battery, or fraud. It is less common for them to be prosecuted for their performance on the job.
Police and prosecutors often interact. It can be tough to file on people that you work with. Nevertheless, I’ve managed to do it several times, and it is common enough every DA will do it once or twice. Many prosecutors offices also have a “Justice System Integrity Division” whose only job is to prosecute police. They go anywhere in the county, and thus don’t interact with any one police agency on a daily basis. Also, there is tremendous pressure on the DA’s office to be hard on cops, and no pressure to be soft on them. Here’s an example.
Finally, cops may also be prosecuted by the Attorney General’s office. If they feel that a local DA has a conflict of interest, they are required to take the case and prosecute it themselves. The California Attorney General has a special unit for this purpose.