Police Misconduct

According to the National Police Misconduct Statistics and Reporting Project, not only are police officers more likely than the average person to commit a number of crimes including assault, sexual assault, and murder, it is estimated that roughly 1 in 4.7 officers will be implicated in an act of misconduct during the course of their career. A 2019 Science article also found that misconduct by one police officer significantly increases the likelihood that peer officers will also engage in misconduct, noting that misconduct within a police department can “spread like a contagion.”

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So, how common is police misconduct? A 2019 USA Today article found that at least 85,000 police officers across the nation have been investigated for misconduct over the past decade. Some officers are “constantly” under investigation, and as many as 2,500 have been investigated on 10 or more charges of police misconduct. Also, according to the USA Today article, most reported misconduct involves routine infractions, yet there were 22,924 investigations of officers using excessive force, 3,145 allegations of rape and other sexual misconduct, and 2,307 cases of domestic violence by officers.

Dishonesty is also a common cause for investigations of police misconduct—the study found at least 2,227 instances of perjury, tampering with evidence or witnesses, or falsifying reports. Since the “blue line” is a real phenomenon (law enforcement protecting law enforcement), and because there are few reporting requirements among police forces regarding police misconduct, it is highly likely these numbers are considerably higher. In the state of Pennsylvania, like most states, police misconduct is often hidden from the public, yet last July 2020 the Governor signed a law that would create a statewide police misconduct database.

What Constitutes Police Misconduct?

There are many different types of police misconduct, from relatively mild infractions to cases of police brutality. Essentially, any violation of state law, federal law, or police department rules and regulations constitutes police misconduct.

Some examples of police misconduct include:

Unlawfully destroying property
Off-duty violence or unlawful acts
Coercive interrogations of suspects
Witness tampering
Racial profiling
Filing a false report
Selectively enforcing the law
Bribing or lobbying legislators to pass or maintain laws giving law enforcement excessive power
Any act that results in physical harm or death of a suspect
Any act that results in false imprisonment of a suspect
Any act that violates the Constitutional rights of a suspect
Any act of sexual misconduct against a suspect
Misusing seized property, money, or drugs
Stealing seized property, money, or drugs
Using a badge to gain entry into a place (like a concert) or to obtain a discount
Being under the influence of drugs or alcohol while on duty
Any type of abusive police procedures

Failure to intervene—when an officer allows a fellow officer to violate a victim’s Constitutional rights—is yet another form of police misconduct. When an officer was aware of a Constitutional violation and had the opportunity to intervene but chose not to, he or she could be charged with police misconduct.

Failure to intervene goes hand in hand with deliberate indifference to a serious medical condition or substantial risk of harm. Law enforcement officers are prohibited from acting with deliberate indifference to the significant risk of harm to an individual in custody. To prove this, it must be shown that the officer had actual knowledge of the risk of harm, yet the officer deliberately refused to take reasonable measures to abate that harm.

Another area of police misconduct is known as “notable cause corruption,” in which the officer believes a good outcome justifies bad or illegal behaviors. While there are many police officers that maintain public order and safety without engaging in police misconduct, those officers who do abuse their power can cause significant harm to individuals, our society as a whole, and our freedoms.

What are the Remedies for Police Misconduct?

There are both criminal remedies as well as civil remedies that can be implemented when there is evidence of misconduct on the part of law enforcement. The specific circumstances surrounding the misconduct will determine the appropriate actions. The goal of these remedies is to ensure accountability, to deter future police misconduct, to improve the manner in which police officers are trained, to improve the relations between law enforcement and the public, and, of course, to make victims of police misconduct whole.

Charging police officers criminally is one remedy for police misconduct. Police officers who abuse their power or unlawfully violate the rights of a suspect or injure a suspect can be criminally charged. Officers can also be criminally charged for theft, tampering with evidence, fraud, or bribery. To be honest, criminal charges against law enforcement are relatively rare, as most departments at least attempt to keep such infractions quiet, handling them in-house. If the misconduct is charged criminally and a conviction results, the police officer could face jail or prison time, fines, removal from his or her position, and revocation of the police officer’s license.
Civil lawsuits can be filed by those who are victims of police misconduct when the individual’s civil rights were violated. A civil action of this type, often known as a Section 1983 lawsuit, involves a lawsuit against the officer accused of misconduct, and, in some cases, the police department that employs the officer. The goal of civil lawsuits is, again, to deter future misconduct by police officers, encourage police departments to provide better training for their officers, and, in theory, to make the victim whole. Unfortunately, relatively few victims recover damages, as they face what is known as “qualified immunity.” Qualified immunity is meant to protect law enforcement from liability as they are forced to make quick decisions, yet in practice, qualified immunity provides a shield for the misconduct of law enforcement.
Administrative action by a state agency, the police department, or the municipality. There are certain actions that can be taken by an administrative agency in response to police misconduct. The state can revoke the license of a police officer or internal affairs may investigate allegations of misconduct, imposing disciplinary actions should the allegations prove true.
The Exclusionary Rule in response to illegally obtained evidence. When police officers illegally obtain evidence, they are guilty of violating the Fourth Amendment. A criminal defendant who believes his or her constitutional rights were violated by law enforcement can ask the court to exclude any evidence obtained illegally. Although the exclusionary rule is mean to provide an incentive for officers to act in a lawful manner, critics argue the rule allows those who commit crimes to go free. On balance, however, protecting the Constitutional rights of the public is of utmost importance, plus the Exclusionary Rule can encourage police departments to ensure their officers are adequately trained regarding Constitutional rights.

Policymaking Changes Regarding Police Misconduct

It is widely believed that until there are changes to our laws that will prevent and discourage the misconduct of law enforcement, those behaviors will continue. Reform can include the removal of common legal impediments that often prevent victims of police misconduct from either bringing a criminal or civil lawsuit against the officer—or succeeding in such a lawsuit.

The reform also includes requiring better education and preparation for law enforcement (tactics used to de-escalate a situation, a clear definition of use-of-force policies, making it clear when use-of-force may be implemented, and education for officers regarding sensitivity toward all races and cultures).

Changes to current laws could also include mandating the use of body cameras by all police officers and even decreasing funding for any police department refusing to engage in these policy changes. The advent of smartphones has vastly increased incidents of police misconduct being captured for all to see and is a good way for citizens to enact necessary changes regarding police misconduct.

Victims of Police Misconduct Should Speak to an Experienced Attorney

The civil rights granted to every individual as they apply to police misconduct come primarily from the following:

The Fourth Amendment protects you against police brutality as well as against illegal searches and seizures.
The Fifth and Fourteenth Amendments include a due process of law clauses that protect you from unlawful arrest and wrongful convictions.
The First Amendment guarantees you freedom of speech while providing protections against retaliation—particularly applicable in whistleblower cases.
Under the Civil Rights Act of 1964, employers as well as federal and state governments are prohibited from discrimination based on race, color, religion, sex, or national origin.

If you have been a victim of police misconduct, it could be beneficial to speak to an attorney who has significant experience in police misconduct cases, whether criminal or civil. Perhaps you have been wrongfully convicted, or are the victim of police brutality, an unlawful arrest, an unlawful search and seizure, or any other form of police misconduct. If so, an attorney can discuss your options with you, including filing a civil lawsuit, filing a complaint with the police department that employs the officer, filing a criminal lawsuit, or filing a complaint with an independent review board. It could also be useful to speak to your local, state, or federal representatives regarding necessary changes to the current laws governing police misconduct. When police misconduct occurs, action must be taken to prevent it from continuing.

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