I'm busy working on my blog posts. Watch this space!
LESSONS FROM BALTIMORE: DON’T BE SCARED OF USING THE COURTS FOR JUSTICE
May 1, 2015
Baltimore is an interesting city; the minority is the majority yet they are still treated like the minority.
I was at a meeting yesterday morning when a fellow attorney asked me, “What do you think about Baltimore? Do you think Pittsburgh is in the same position?” And by position he meant, “Do you think Pittsburgh is a powder keg ready to explode when another unarmed black man is gunned down?” And yes I said “when” and not “if.”
Truthfully, I do not think so. There are poor and blighted neighborhoods in Pittsburgh, but I do not think that the ingredients are all quiet there for a literal “scorched earth” approach to dealing with police injustice just yet. If there were ever a riot in response to an unarmed shooting, then it would be the result of Pittsburgh following the pattern created in different cities, not necessarily because Pittsburgh itself has been on the precipice of self-destruction.
But the burning question is: how do we hold the city and abusive police officers responsible for the crimes they commit?
In Tulsa, Deputy Robert Bates shot and killed an unarmed black man, claiming that he thought his service weapon was his “stun gun.”
In Atlanta, Anthony Hill, 27, was running naked and suffering from an obvious mental illness when he was shot and killed by a police officer.
In Palm Beach, Donnell Stephens, 20, was riding his bicycle with his cellphone in his hand when police dash-cam footage captured the police shooting him four times, paralyzing him.
…these are from the last three months of this year.
With all this rampant injustice, the legal mechanisms designed to compensate victims and punish wrongdoers need to be used more frequently; the courtroom is often more effective than a riot.
Now, I do not view my approach through the lens of a criminal lawyer. If there are arrests to be made and charges to be filed, those are issues for the district attorney.
In my particular field, there is always the option of filling a lawsuit under 42 U.S.C. § 1983 (or just plain old Section 1983 as its known in the practice.) Section 1983 allows an individual to seek money damages for the violation of a federal constitutional right. But in order to be successful, the perpetrator and his conduct must fall into specific categories.
First, the perpetrator needed to be “acting under color of state law.” What this means is that the perpetrator—or police officer in this instance—needed to be acting as a police officer or in some way using that authority to abuse a civil right.
A common misconception is that ordinary folks on the street can violate your constitutional rights. Not necessarily. The Constitution protects you against the government abusing your rights.
So if a police officer violates your civil rights, that police officer had to be acting in connection with his official duties at the time of abuse, or in some way using his position as a police officer to violate your rights.
Then there must be an actual violation of a constitutional right.
While there are a host of rights that can be violated by out of control police officers, by far the most common are false arrest (Fourth Amendment); malicious prosecution (Fourteenth amendment); and use of excessive force (Fourteenth amendment).
But each of these violations comes with a big “but.” For example, if a police officer effectuates an arrest but has probable cause to make the arrest, then there is no claim for false arrest. Similarly, if an individual is tried in a criminal case, but it can be shown that there was probable cause and there was no evil intent on behalf of the government, then there is no claim for malicious prosecution. And even if a cop has malicious intent but it is determined that the use of force was reasonable, then there is no claim for use of excessive force.
While some question the effectiveness of legal mechanisms like Section 1983 claims, they are still vehicles for justice. Citizens cannot be afraid to utilize the mechanisms available to them, and attorneys cannot be afraid to take the financial risk of trying these cases when justice can be served.
It must be remembered that justice is not just about punishing wrongdoers, but also making the victim whole again. And it is my opinion that Section 1983 comes closest to that goal—well closer than burning down a city.