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Ernst Charara & Lovell, PLC

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Police Misconduct

Police Brutality; Excessive Force; Wrongful / False Arrest; Wrongful / Warrantless Search; Racial Profiling; Discrimination; Malicious Prosecution

Have you been a victim of police misconduct?

“No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it.”

President Theodore Roosevelt, Third Annual Message to Congress, December 7, 1903

The goal of our Detroit police misconduct attorneys is to use three decades of experience on your behalf, working to prove police misconduct. Your rights are important to us, so we stand by your side throughout every step of the process and every aspect of your case in the pursuit of justice. You shouldn’t have to deal with the aftermath of a law enforcement officer working outside his or her regulated boundaries. ECL Law Firm is a police misconduct law firm in Detroit, Michigan with over 30 years of civil rights experience. If you or a family member was a victim of police misconduct, we want to hear from you today.

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The Fourth Amendment

The Fourth Amendment to the United States Constitution guarantees the right against unreasonable searches and seizures. In full, the Fourth Amendment states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment was written to protect United States citizens from abuse of power from government officials, specifically law enforcement officers. In fact, one of the main reasons early Americans fled from Europe centuries ago was to escape abuses of government power. The Fourth Amendment was thereby written to ensure that the people would not be subjected to unreasonable searches and seizures. An “unreasonable” search or seizure typically means one without a warrant, or without probable cause.

The Fourth Amendment thereby memorializes an individual’s right not to have his home, his car, or his body searched without a warrant or probable cause. Likewise, an individual also has a right not to be arrested without probable cause. In this context, probable cause generally means, “a reasonable belief that the individual has committed, is committing, or is about to commit a crime.”

In addition to the right to be free from unreasonable searches and seizures, the Fourth Amendment protects an individual from the use of excessive force by police officers during the course of an arrest. While police officers may use some force, depending on the circumstances, they may only use as much force is necessary. If an individual is not resisting arrest, the police typically cannot use any amount of force other than that required to place handcuffs. This means that law enforcement officers cannot tackle, assault, strike, beat, tase, or use deadly force on an individual who is being arrested—unless absolutely necessary. 

Lastly, the Fourth Amendment prohibits police officers and other government officials from intentionally arresting and prosecuting individuals as punishment or where the charges are baseless. This claim is called “Malicious Prosecution,” and police officers can be sued for malicious prosecution under both the Fourth Amendment and the laws of the state of Michigan—MCL 600.2907.

The Fourteenth Amendment

The Fourteenth Amendment to the United States Constitution states that “…no state shall deprive any person of life, liberty, or property, without due process of law…”. In addition to the rights to life, liberty, and property, the Fourteenth Amendment guarantees the right to bodily integrity and the right to be free of unauthorized and unlawful physical abuse by the state.
These rights are guaranteed by two separate Fourteenth Amendment concepts, both dealing with due process: Substantive Due Process; and Procedural Due Process. In all cases where a person stands to be deprived of his life, liberty or property, he is entitled to the procedural protections of the Due Process Clause. See Bd. of Regents v. Roth, 408 U.S. 564, 567 (1972); Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). In order to establish a procedural due process claim, a plaintiff must show that (1) he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this protected interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of the property interest. On the other hand, a substantive due process claim requires that a person show that the law enforcement officer’s behavior was so horrific or egregious as to be “shocking to the conscience.” While a person with a substantive due process claim does not need to show a deprivation of life, liberty, or property, these claims are incredibly difficult to bring because of various protections and immunities that police officers are often entitled to.
The freedom from deprivation of life without due process is clear—this means that the government may not exercise deadly force, execute, or otherwise cause the death of a person without sufficient due process, such as conviction at a criminal trial and the opportunity to appeal. The police may not use deadly force unless absolutely necessary—for example, the police may not shoot a fleeing criminal suspect in the back if they have no reason to believe that he will cause harm to others.
The concept of a “liberty interest” was traditionally meant as freedom from physical restraint—in other words, freedom from being physically held or tied down. However, the Supreme Court has expanded what constitutes a “liberty interest” in a variety of circumstances. School children have a liberty interest in freedom from wrongfully or excessively administered corporal punishment. Individuals have a liberty interest in not being labelled by the government—for example, a law that labels people who have received DUIs as “excessive drinkers.” Inmates have a liberty interest in not being placed in solitary confinement or being transferred from minimum security prison to maximum security prison.
As to a “property interest,” this traditionally meant that government officers may not take an individual’s belongings, money, or home without due process. This right has been expanded to prevent the government from denying welfare assistance. Further, individuals may have a property interest in a contract for the sale of goods, or in keeping their jobs. In the context of police misconduct, the most common examples of deprivations of property are where police confiscate belongings from individuals, including their money or vehicle, or where the police unlawfully evict a person from their home.
In addition to protecting individuals from being deprived of their life, liberty, or property, the Fourteenth Amendment also prohibits discrimination by police officers. The Amendment states that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” This section thereby prohibits police officers from discriminating against individuals on the basis of their race, sex, national origin, and religion, among other things. Accordingly, police officers may not target individuals based on one of these characteristics, nor engage in racial profiling, nor otherwise treat an individual worse because of one of these characteristics.

The Fourteenth Amendment in Prisons / Jails

Not only do individuals have a right to be free from a deprivation of life, liberty, or property in their day to day lives, they have that same right even after they have been convicted and imprisoned. Though inmates have reduced liberty rights, the Fourteenth Amendment may prohibit moving an individual into solitary confinement or into a higher security prison without some sort of hearing. Procedural due process also includes the right to be free from unwanted medical treatment, including unwanted administration of antipsychotic or other psychoactive drugs. See Washington v. Harper, 494 U.S. 210, 221-22 (1990); see also Riggins v. Nevada, 504 U.S. 127, 133-34 (1992) (extending Harper to pretrial detainees); Noble v. Schmitt, 87 F.3d 157, 161 (6th Cir.1996) (“[t]he Supreme Court has held that individuals in state custody enjoy protectable liberty interests to be free from bodily restraint, and to refuse medical treatment such as the administration of antipsychotic drugs”).
Additionally, the Fourteenth Amendment protects individuals from excessive force who have been arrested but not yet convicted of any crime. These individuals are referred to as “pre-trial detainees,” are entitled to similar protections to those provided by the Fourth Amendment against excessive force.

The Eighth Amendment

After an individual has been convicted and imprisoned, they are protected against excessive force and officer brutality under the Eighth Amendment. The Eighth Amendment states that:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
In the context of excessive force against prisoners, the important part of this amendment is the last section—“nor cruel and unusual punishments inflicted.” In Ingraham v. Wright, the United States Supreme Court stated that the “unnecessary and wanton infliction of pain” constitutes cruel and unusual punishment. Therefore, cruel and unusual punishment has been found where prisoners are beaten, as well as where a prisoner was handcuffed to a hitching post for several hours and denied water and bathroom breaks. Additionally, the Eighth Amendment prohibits certain conditions of confinement, such as overcrowding, denial of requests to see doctors, and being placed in close quarters with other inmates with highly contagious diseases.

42 U.S.C. § 1983

While the Constitutional Amendments listed above provide for rights, they do not by themselves allow a victim of excessive force or other police misconduct to sue for money damages. To fix this problem, Congress passed 42 U.S.C. § 1983, which allows individuals to sue in a federal district court when they have been the victim of an abuse of power by the government.
42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State…subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…
This statute thereby allows an individual to sue a police officer or other governmental official for subjecting them to a deprivation of their Constitutional rights, and to receive money damages. Not only that, the Supreme Court has held that private individuals can also be sued under § 1983 where those individuals act “under color of any statute, ordinance, regulation, custom, or usage” of a State and otherwise cause an individual to be deprived of their Constitutionally protected rights. Accordingly, § 1983 allows a victim of excessive force to sue private security, as well as other private individuals, in certain circumstances.

Suing Federal Law Enforcement

Instances of police misconduct, police brutality, and excessive force are most often seen perpetrated by state law enforcement officers and county sheriffs and their staff. However, the United States Supreme Court has held that federal law enforcement officers can also be sued for using excessive force. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court for the first time allowed an injured citizen to sue a federal police officer for money damages due to an unlawful search and seizure. While Bivens claims have since been restricted to a certain degree, an individual may still sue a federal officer for excessive force similar to a violation of the Fourth Amendment.

speaking truth to power

Police misconduct and police brutality have not ceased since the inception of the United States nearly 250 years ago. In fact, as the population has grown, so have the total number of instances of police officers and other governmental officers abusing their power. The Constitutional Amendments and 42 U.S.C. § 1983 are thereby crucial to help victims of this abuse of power be compensated for their injuries and to deter the authorities from misconduct in the future.

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