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How to File a Civil Rights Action Against a Police Officer for Unlawful Conduct

I am asked many times each week whether a client has a valid Civil Rights claim against a police officer for what is commonly termed "harassment."  "Harassment" alone does not qualify for such a claim.  The officer must act without probable cause or act maliciously against a person in order to have at least a claim that will survive the summary judgment stage.  A Civil Rights Act case can be filed in either state or federal court.  However, if the claim is filed in state court there is a very good chance the defense will file a motion to remove the case to federal court.  That type of motion is almost always granted.  Defendants for this type of claim vie better in federal court for a variety of reasons. 

Regardless of where the case is filed the Plaintiff may request attorney's fees, court costs, and general damages against the defendant should they prevail.  Attorney's fees in this type of case is very concerning to defendants due to this fee being as great as or greater than the actual damages sought.  Section 1988 allows attorney's fees in such claims.  Attorney's fees are allowed in order to create incentive for private attorneys to take on these cases.  If attorney's fees were not allowed there would be very few attorneys willing to tackle this type of case.  A lot of time is expended on these cases by the attorney.  Aside from attorney's fees, damages for emotional distress, pain and suffering (excessive force claims), lost wages, medical expense (excessive force claims), and other special damages including punitive damages may be sought by the Plaintiff.

I always look ahead in each of the cases to determine whether the client can get past the summary judgment stage of proceedings.  If I believe the risk is greater that my client will lose at that stage I decline the case.  At the summary judgment stage the defense typically alleges a variety of reasons they believe should result in dismissal of the case.  Many times they argue probable cause existed to cause the arrest and charging of the Plaintiff by their client.  If the court believes this contention the case is dismissed and the client may be ordered to pay costs of suit to the defense.  Many times a police officer will rely in good faith upon a third party's complaint against the person charged with a criminal offense.  Even though the client believes the third party complainant was lying the court can determine the officer did not know the statement to him/her was a lie at the time the complaint was taken.  For offenses that result purely from the officer witnessing the incident or being the complainant himself the defense cannot avail themselves of the third-party complaint lack of probable cause argument. 

In cases where the officer claims to have received a third-party complaint but fails to conduct further investigation into relevant elements of the charge the Plaintiff will be able to survive summary judgment.  As an example, I am working on a complaint where the officer received a complaint by an ex boyfriend of a client.  He claimed the client violation an Order of Protection in that she contacted him in a variety of methods.  The problem in this case is that had the officer taken the time to review the order of protection it specifically referred to a custody order from outside the State of Illinois wherein the court had allowed my client to make exactly the type of conduct she did regarding visitation.  Had the officer investigated the custody order (and he should have done exactly that) he would have discovered she was therefore not in violation of the order of protection.

Processing the civil claim is the same as in other civil claims.  Interrogatories, requests for production, requests to admit, and depositions are conducted.  After some discovery is conducted a settlement conference is held in federal cases.  Many times the cases are resolved at that hearing.  If not the case proceeds to trial. 

Brian L. Polinske
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