There are a lot of misconceptions about police misconduct and detainee abuse out there. One of the biggest myths perpetuated out there is that it’s easy to find a lawyer who will file a civil rights lawsuit for you when you claim you were abused in custody and that all these cases result in huge multimillion dollar payouts.
Sure, we all hear about the big payouts in places like California but the fact is that, in most states that’s just not the case, in fact, in many places that’s just plain impossible.
First, there are a lot of factors that affect how likely it is that you will find someone who will take your case when your rights have been violated, the biggest one is whether or not you have money to pay a lawyer upfront to take your case.
A civil rights suit is a lengthy battle that requires a lot of research and investigation and you pay your lawyer, as well as all the investigators and experts he or she hires, on an hourly basis along with any costs they incur in traveling… so, when we talk about paying a lawyer upfront, were easily talking six figures.
Now, most victims of mistreatment in custody don’t have that kind of money, when that’s the case you have to hire a lawyer on a contingency basis which means they only get money if they win. When this is the case, lawyers are very picky about what cases they’ll take on and they have to take several things into consideration.
- Whether your case has a very good chance of winning. (Our statistics indicate that civil rights lawsuits are filed in only 6% of alleged cases).
- How much of an award would be involved. (Given the amount of time a lawyer must spend on a case, it has to be sufficient enough to be worth his or her time.)
- Whether or not you would be willing to settle. (Lawyers like settlements since they take less time than going to court and challenging the multitude of appeals and delays that the police lawyers always file, so they often work their contracts to take less of a cut for settlements to encourage you to accept them.)
- Their own risks of liability in taking on a case. (Police unions love to file a type of counter-suit called a SLAPP (Spurious Lawsuit Against Public Participation) which is a civil suit for slander/libel against the person claiming abuse and their legal representation. The case may not have merit, but that doesn’t matter, it costs time and money to defend against them, which reduces the amount a lawyer can take away from the case and discourages them from accepting cases, which is what they are designed to do).
Hopefully, you’re starting to get the picture as to how hard it can be in some places to find lawyers who take police misconduct cases and, believe it or not, why some lawyers are getting away from civil rights practices because it’s just not lucrative enough to make a living.
Let’s take Washington State for example. Here there are several factors that make it incredibly difficult to find lawyers willing to take on police misconduct cases:
- Public attitudes are very favorable towards the police, so favorable that the success rate for criminal and civil cases against the police are in the single digits. In Seattle only one civil suit has won against the police in at least 20 years, the same is true for criminal cases. The last three criminal cases in Seattle lost, even with testimony by cops against the charged officer! So, the odds of winning are very low, even with a good solid case.
- The awards in Washington are very low because of tort-reform legislation which does not allow pain and suffering awards as well as punitive damages. You know that case I mentioned in point 1? It only won $268k, and that was after an appeal challenge. This means there isn’t much profit for lawyers to work on a case for years just to get a five-figure cut from the win. (Generally they get 40-60% of the win on contingency). Would you work 3 years (the usual amount of time for a case to go through, though some can drag out longer) for $134k? (that’s $45k a year).
- Because winnings are so limited, so are settlement offers. Governments and the lawyers who represent them know what you can win is very limited, so when they do settle it’s often a very low amount, averaging just under $67k in Seattle for the few cases that do get settled. But, even though that’s a lower amount than the very rare win will generate, it’s a lower risk for the lawyer and it’s a $30k per year on settlement opposed to the $45k on a win difference. Though, the $100k+ settlements make a better margin than wins for lawyers.
- There are no anti-SLAPP laws in Washington State, so spurious counter-suit s still occur, which makes it much more risky for lawyers to take any cases. In fact, there’s a really nasty suit going on in Seattle currently where a lawyer, who was shot by an off-duty cop, has sued the cop and the cop has filed counter suit, paid for by the city, against not only that lawyer, but also the witnesses of the shooting claiming both defamation and that they injured him… Why? Because the witnesses can’t afford their own lawyers and are being told that if they change their stories to favor the cop that they’ll be dropped from the suit.
Now, some people may be asking, what about the ACLU? Well, the ACLU only takes cases very selectively and their considerations hinge more on whether the case is a unique enough type of complaint that could lead to a precedent or whether the case would lead to a lot of headlines for a civil rights issue other than police brutality on its own.
So, more often than not, the ACLU declines to accept police misconduct cases and, in the two they’ve accepted recently in Seattle, each only won settlements under $10k each… and those were photographer rights issues, not police misconduct. So for them, it’s about the publicity, not the client.
Why am I explaining all of this?
I think it’s important from a police accountability perspective to understand why some localities don’t feel pressured to introduce meaningful reforms that would address police misconduct seriously.
The lack of a financial penalties that are sufficient enough to outrage taxpayers into paying attention is certainly a reason why there isn’t much pressure to change things. Also, the fact that fewer and fewer lawyers take on police misconduct cases gives even less pressure to make changes because that’s one of the main ways we find out about misconduct.