DEALING WITH POLICE MISCONDUCT OR EXCESSIVE FORCE IN WISCONSIN

Transcription

1 DEALING WITH POLICE MISCONDUCT OR EXCESSIVE FORCE IN WISCONSIN Written by: Jonathan S. Safran This guide attempts to answer some of the most common questions and provides a basic understanding of the steps that you can take to have your claims investigated, to preserve your rights, and to potentially pursue a claim for financial compensation for any injuries or damages you received. 1 TAKE CARE OF YOURSELF FIRST If you believe that you have suffered injuries or damages as a result of police misconduct or excessive force, seek immediate medical care at a local hospital emergency room, urgent care clinic, or physician's office. Although potentially embarrassing or troublesome, make sure to let the healthcare providers know how your injuries or damages occurred through the history which you provide to them. Let them know that the injuries were caused by the specific actions of the police officers with which you had contact. As with any medical appointment, tell the healthcare providers of any pain, visible injuries, or other medical concerns which you have. They may suggest that x-rays, CT scans, or other tests be performed in order to help them diagnose your injuries. Follow the recommendations that those medical professionals suggest. If they provide you with prescriptions or other follow-up appointments, do your part in following through to obtain all medications and to keep all appointments. 2 DOCUMENT YOUR INJURIES OR DAMAGES If you have injuries, or damage to your property, make sure to document those injuries or damages. Take photographs of anything which is visible. Make sure that other family members or friends are aware of what happened to you and see for themselves the visible injuries or damages which you or your property sustained. Keep receipts for any medical care or prescriptions, and obtain repair estimates for any damaged property. Do not have the damaged property repaired until you allow others investigating your claims the opportunity to inspect the damage themselves. Obtain the names and identifying information, including phone numbers and addresses, of any witnesses to the incident. If

2 you believe that others may have taken photographs or videos of the incident, contact them and ask them to preserve that evidence. If you believe that surveillance cameras of businesses or organizations may have taken videos of the incident, contact them and ask them to preserve the evidence. 3 CONSULT WITH AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY IF YOU HAVE BEEN CHARGED WITH A CRIME OR RECEIVED A MUNICIPAL CITATION FROM THE INCIDENT If, as part of the incident, you have been charged with a crime or received a municipal citation, it is important that you obtain legal advice from an experienced criminal defense attorney. That attorney should advise you on the merits of retaining an attorney to defend you against the criminal charge or municipal citation. If you have been charged with a crime, you will certainly need to either hire a paid attorney or determine whether you qualify to be represented by an attorney appointed by the State Public Defender s Office. That attorney will advise you and represent you in all court proceedings, and will also request a copy of the discovery that has been generated by the law enforcement agency. The discovery may consist of things such as police reports, citations and notes, witness statements, photographs, dash camera video, audiotapes, dispatch reports, witnessprovided photographs or videos, surveillance videos, and other evidence gathered in investigating your case. 4 CONSULT WITH AN EXPERIENCED CIVIL RIGHTS ATTORNEY It is important that you discuss your claims with an experienced civil rights attorney, and it is important that you identify an attorney who has the necessary experience with such claims. That attorney should give you advice as to whether the facts of your incident are sufficient to pursue a claim, what notice requirements apply, what time limitations apply to pursuing a claim, and what steps you should follow to pursue a claim for financial compensation. Sometimes the attorney will simply gave you advice and then ask you to follow up later; sometimes the attorney will meet with you to review documents, give you advice, and then ask you to follow up later; and sometimes the attorney will meet with you and have you sign documents in order to represent you. The attorney should explain the potential claims that you might pursue, under State and Federal law, and the different applicable Statute of Limitations time periods that apply to settlement or pursuing claims in court. 5 FILE YOUR COMPLAINTS WITH THE PROPER AGENCIES

3 It is usually preferable to have your complaint investigated by police agencies or others who deal with such concerns. Often the agency involved has an Internal Affairs Division to investigate citizen complaints of crimes or misconduct by police officers. Some communities have a Fire & Police Commission, whose duties include investigating complaints or monitoring investigations. You may also file complaints with the County District Attorney, State Department of Justice, or U.S. Attorney s Office. Most will have citizen complaint forms to complete. If you file a complaint form, keep a copy for yourself, to provide to an attorney who may review your claim. Also, obtain a copy that reflects the date and time you filed it. If you were charged with a crime, review the complaint form with your criminal defense attorney before you file it, to insure you are not stating something that might be used against you in any pending case. You may also wish to review it with a civil rights attorney. 6 FILE THE NECESSARY NOTICES TO PRESERVE YOUR FUTURE RIGHT TO MAKE A CLAIM FOR COMPENSATION FOR ANY INJURIES OR DAMAGES If your complaints involve injuries or damages, and if you plan to pursue financial compensation in the future for those injuries or damages under State law, it will be necessary for you to file Notice documents with the applicable City, Village, Town, County or State, within a specific time period, in order to comply with Wisconsin State law. If the law enforcement agency was a City, Village, Town or County agency, Wisconsin Statutes Section provides the requirements of what should be included in the Notice. If the law enforcement agency was a State agency, Wisconsin Statutes Section provides the requirements of what should be included in the Notice. Generally, both types of Notices need to be filed with the applicable person or department within 120 days from the date of the incident. If you are married or have children, they may also need to be named and sign the Notice. Both notices can be complicated, and It is best to consult an experienced attorney for this process 7 FOLLOW THROUGH WITH ADDITIONAL MEDICAL CARE AND MENTAL HEALTH TREATMENT WHEN APPROPRIATE If you have ongoing physical or emotional injuries from police misconduct or excessive force, it is important that you get all care necessary. In addition to physical injuries, you may have been traumatized by this incident, resulting in depression, anxiety, sleeping difficulties, withdrawal from friends and family, and sometimes post traumatic stress disorder. If you are experiencing physical pain or emotional distress, it is important that you seek medical care and obtain assistance. Treatment for physical injuries may involve physician appointments and referrals for physical or occupational therapy, diagnostic testing, medication, or chiropractic care, to name a few. Treatment for emotional distress injuries may involve physician appointments, referrals for counseling with a therapist, counselor, psychologist, or psychotherapist, and maybe consultation with a psychiatrist,

4 and medication, as possibilities. This is important for your health and also for your claims. 8 PURSUE POTENTIAL CLAIMS FOR COMPENSATION FOR INJURIES OR DAMAGES In addition to any criminal charges or disciplinary charges against a police officer, the actions of a police officer, depending upon whether certain facts and evidence can be proven, may entitle you to make a claim for compensation for injuries or damages which you have sustained from police misconduct or excessive force. Sometimes liability insurance is available to cover such claims and sometimes it is only taxpayer money that is available. Claims for injuries or damages may be pursued in an attempt to settle such claims prior to involving the court system, however, such settlements, without a lawsuit being filed, are rare. In pursuing claims for compensation alleging federal civil rights violations, the person bringing the claims must prove that her or she has been deprived of a right secured by the Constitution or laws and that the person who caused the violation was acting under color of law. Not all violations of the law give rise to a federal civil rights violation claim. 9 PURSUE POTENTIAL CLAIMS FOR COMPENSATION THROUGH THE STATE OR FEDERAL COURT SYSTEM IF YOU ARE UNABLE TO SETTLE OUT OF COURT If your claims cannot be settled directly with the authorized attorneys or insurance company for the City, Village, Town, County or State of Wisconsin responsible for the law enforcement agency involved in your incident, then you will need to consider filing a lawsuit either in State Court or Federal Court. This will generally require you to retain an experienced civil rights attorney to represent you, due to the complexities of these types of cases. Lawsuits for compensation for civil rights violations may be brought in either State or Federal Court, but the attorney you consult will explain to you the advantages and disadvantages of one over the other. Wisconsin, like many states, has enacted laws that impact and often make it difficult to adequately pursue a case in State Court, such as limits on damages, certain immunities, and some of the above-indicated notice and procedural requirements. For those reasons, civil rights claims are usually pursued in Federal Court. 10 UNDERSTAND THAT VIOLATIONS OF CERTAIN FEDERAL CIVIL RIGHTS LAWS CAN RESULT IN MONETARY RECOVERY

5 Federal civil rights violation claims to obtain financial compensation for injuries or damages are often pursued pursuant to the United States Code, Title 42 U.S.C., Section A successful claim may also allow a person s civil rights attorney to an additional award of reasonable attorney fees. In addition to violations by a particular person, claims may be pursued against a governmental employer, such as the city, village, town, county or State itself, if it can proven that the action causing injury or damage was due to a policy statement, ordinance, regulation or decision officially adopted, or a an unwritten policy that has been pursued. These types of claims are authorized by the 1978 U.S. Supreme Court case of Monell v. Dept. of Social Services. As indicated previously, these cases are very complex and require significant knowledge and dedication. Also, these cases may often take years to be resolved. 11 CHOOSE THE RIGHT CIVIL RIGHTS ATTORNEY TO REPRESENT YOU Hiring the best attorney and law firm can be a difficult undertaking. Make sure to do some research on the attorney and his or her law firm. Speak with other attorneys and professionals you may know. Review the attorney's web site, find out what civil rights cases the attorney has handled, check on the outcome of those cases, and review any media coverage of those cases. Contact the State and local Bar Associations, other legal organizations, and check with the State disciplinary organization to find information. Speak with the attorney over the phone, and provide documents for review. If the attorney is interested in your case, schedule an appointment to ask further questions, find out how the attorney is paid, and get a sense of the attorney's demeanor. You need to feel comfortable with the attorney, so you can work together and feel confident the attorney has sufficient knowledge and dedication to pursue your case actively against the police agency and governmental entity involved.