TAKING ACTION: POLICE MISCONDUCT
If a person feels his or her rights have been violated by a police officer, it is important to document as many of the following as possible:
- Date, time, and location of the incident;
- The officer’s name, badge number, and squad car number;
- A physical description of the officer;
- The officer’s precinct number or division (possibly found on the brass insignia on the officer’s shirt collar); and
- Any witnesses present at the time (get names and phone numbers if possible).
Use of excessive force, inappropriate sexual behavior, or violation of constitutional rights by a police officer can also give rise to a lawsuit against the police officer, the police department and the city under the state and federal constitutions.1
Document any injuries right away. If a person is injured, they should get medical care as soon as possible. Be sure to tell the caregiver that the injuries were caused by police and be certain it is noted in the medical record. Get a copy of the medical record when leaving the clinic or hospital. Have injuries photographed immediately, using good quality color film or a high-resolution digital camera with a time and date stamp. If a healthcare facility offers to take photographs, have them use your camera or take copies of the photographs when you leave. Sit down right away and write down every detail about the incident. Ask any witnesses to do the same.
Below are several ways to report police misconduct. Please note that the National Lawyers Guild does not encourage individuals to report police misconduct directly to police departments or city offices because of a historically high incidence of retaliation and non-response.
Making complaints to city agencies can be highly ineffective and discipline is historically and statistically unlikely. Frequently, there is very little action taken on reports of police misconduct. Of 164 allegations of police misconduct made to the Oakland Citizens’ Police Review Board between January and June of 2011, only 6 (4%) were sustained.2 However, benefits of reporting to the city agencies include that there is a possibility (though unlikely) of officer discipline, a report that is substantiated may bolster any civil lawsuit that might be brought against the officer(s), reports can be used in class action lawsuits brought by non- profits on behalf of a group, and each individual report affects statistics and other information that is used to influence attempts to bring about changes in police policies and tactics.
For issues with the San Francisco Police Department, the most effective way to file a complaint of misconduct is to go to the Office of Citizen Complaints (OCC), located at 25 Van Ness Avenue, Suite 700, San Francisco, CA 94102. This will allow investigators to personally interview the person and to do a thorough job of completing the initial, and one of the most important, phases of the investigation of a complaint.3 For more information, visit http://sfgov.org/occ/ or call (415) 241-7711.
For issues with the Oakland Police Department, a person can either call the 24-hour complaint hotline at (866) 214-8834 or the Citizens' Police Review Board Office at (510) 238-3159. Both of these offices have challenges that cause barriers to access and effectiveness. The OCC has inadequate funding, a small staff, and long delays in charging offending officers. Between 1996 and 2004, the OCC received more than 10,000 complaints and sustained only ten percent.4 The Oakland office no longer has public hearings, which indicates less accountability to the public. Individuals who experience police harassment or misconduct in Oakland can contact People United for a Better Life in Oakland (PUEBLO) for assistance making a report at (510) 535-2525 or visit their website at www.peopleunited.org.
People who experience police harassment or misconduct in San Francisco or greater Bay Area can contact Community United Against Violence (CUAV) for support resources, assistance filing police misconduct reports, and courtroom advocacy. CUAV can be reached online at www.cuav.org, or via their multi-lingual hotline at (415) 333-4357.
Individuals anywhere in the country can visit the National Lawyers Guild’s National Police Accountability Project (NPAP) website at www.nlg-npap.org to locate attorneys and organizations that work with police misconduct issues across the country.
Sample Questioning Scenarios5
It’s unlawful for the police to beat you into confessing; however, it’s perfectly legal for them to sucker you into it. That’s why interrogation doesn’t usually involve bright lights and rubber hoses—more often than not, the officer sounds sympathetic or at least business-like. And that can leave you even more vulnerable to manipulation, because when you feel relieved that the officer isn’t being really scary, you tend to let your guard down. Besides, it’s truly difficult to overcome the natural urge to talk one’s way out of trouble. That’s why it makes so much sense to train yourself to say, “I’m going to remain silent. I would like to see a lawyer,” under any circumstances. It’s got to become a reflex you can rely on, the same way you know that you’d automatically start swimming if you fell into deep water, even if you were scared and disoriented.
Common Interrogation Lines
You’re not a suspect. We’re simply investigating here. Just help us understand what happened and then you can go.
If you answer questions, you’re likely to become a suspect, if you aren’t really one already.
What are you afraid of? If you haven’t done anything wrong, then you shouldn’t have any problem answering my questions.
What you should be afraid of is being lured into answering questions. You don’t have anything to prove. Remember, in court you’re “innocent until proven guilty”—and the thing most likely to prove guilt is an unplanned statement made when you’re arrested. If the police are thinking of arresting you, answering their questions will make them more determined to do it, not less so.
Look, if you don’t answer my questions, I won’t have any choice but to take you to jail. This is your chance to tell your side of the story.
This is the most common trick of all! The police consistently pretend that they’re considering letting you go, when they’ve already made up their minds to take you to jail. Remember, the time to tell your side of the story is when you’re in court and have your lawyer helping you—not when you’re alone with a cop who’s busy building a case against you.
Your friends have all cooperated and we let them go home. You’re the only one left. Do you want to stay in jail?
The police can lie about where your friends are and what they’ve said. Don’t trust information given to you by the cops. Make sure to verify your facts through a lawyer or your friends and family.
I’m tired of screwing around. If you don’t answer my questions, you’re going to be charged with obstruction.
Well, you know this is garbage, because the Constitution guarantees you the right to remain silent—so refusing to answer questions can’t be against the law. But some cops will still threaten you with “resisting an officer” or “obstruction of justice,” just to see whether you’ll fall for it.
Come on, I’m not asking you to sign anything. We’re just talking. And you can stop any time you want to.
Remember, anything you say can be used against you in a court of law. You don’t have to sign anything to make it a real confession—the police will just quote you (and they may be taping you, too). The time to stop is before you ever begin—even a little time spent answering questions can completely screw up your case.
Look, we’ve got all the evidence we need to convict you, so you might as well confess.
If the police really had all the evidence they needed, they wouldn’t waste time talking to you. The only reason they’re questioning you is because they don’t have enough proof, and they’re hoping you’ll be kind enough to give it to them.
Basically, the case against you is really strong. It’s not a question of whether you’re going to jail—it’s a question of what you’re going to jail for. This is your last chance to get the right information to the DA before he decides on the charges.
This is not the time to give more information to the DA (the prosecutor). You can do that later, once you’ve got a lawyer helping you. After all, the DA can change the charges any time up to trial, and usually does—reducing or dismissing them as part of a plea-bargain. But your lawyer can get you a better deal if you don’t give away all your bargaining power by confessing to the arresting officers.
You got a choice here. Either you answer my questions, or you’re going to jail. And I’d hate to see a nice white girl like you get punked by a bunch of gangsters.
– or –
You can talk to me now, or you can go to jail. And let me tell you something, there’s men in that jail who haven’t been outside in months, men who haven’t been with a women for a real long time. How’d you like to be raped by a bunch of gays?
Cops use this kind of race-baiting and queer-bashing pretty frequently to scare people who haven’t been to jail before. And the cops aren’t particularly subtle about it. Don’t let some bigot with a badge put his trash into your head. TV and movies make rape-in-jail scenarios look more frequent than they really are. Most people in jail are there for drug or property crimes, not crimes of violence (much less sexual violence). If you behave reasonably, other prisoners really aren’t likely to give you a hard time. This is not the time to launch into a political discussion of how the legal system is malfunctioning and can't be trusted to protect the innocent. Don't let yourself be drawn into any kind of conversation at all.
General Interrogation Techniques
You know the police are really trying to manipulate you when they offer a legal defense or moral justification for what you’re accused of doing, or imply that what happened was due to an accident or to circumstances beyond your control. In applying this tactic, the interrogator frequently offers the suspect two choices, for example: a believable explanation or an unbelievable one; an honorable excuse or a dishonorable one. Of course, both choices are still damaging admissions—it’s just that one sounds better than the other. Imagine the following lines said by a sympathetic, understanding police officer in a warm, reassuring tone of voice:
- I understand what you’re saying...he threatened you, and essentially you were acting in self-defense.
- Okay, we’ve got you for possession of marijuana. But what isn’t clear to me is: were you just out to get stoned, or were you maybe using it for medical purposes?
- What I’m wondering is whether you needed that money so you could take care of your kids and get them decent food and clothes and all—or did you just do it because you wanted drugs or new Nikes or whatever?
- Well, that’s a perfectly normal reaction. When a man finds out that his wife is sleeping with another guy, he’s going to want to go out and do something about it.
Accident or Circumstances Beyond Control
- Now, I wasn’t there, so I don’t know. Only you know what really happened. But I’m thinking that when two people get into it, when there’s an argument, stuff can happen that nobody ever intended. I mean, you could’ve just been shoving each other around, and he could’ve fallen and hit his head by accident—just plain bad luck.
- Obviously there’s a difference between being an active participant and being a bystander. It’s one thing to be actually involved in selling sex, and it’s another thing to just be in the house when some other girl is. But the way things look you could be either one. And the only way we’re going to be able to figure out what your real role was is if you talk to us.
- Another common tactic is minimization/maximization, contrasting the worst-case scenario with the best possible outcome:
- You know, there’s a lot of different ways this case could be charged. Anywhere from human trafficker—that gets you 15 years in prison—all the way down to nuisance, for which people typically get a slap on the wrist. What we’re doing right now is trying to understand what really happened, so we can make a decision which way to go...
Often the police will even say, “Look, I’m not making any promises...” and then imply that confessing will result in a better outcome in court: lesser charges, a more favorable sentence, etc. This is a lie. The police are not authorized to offer leniency in exchange for a confession. Only the prosecutor or judge can make a plea-bargain.
All law enforcement officers are trained to question suspects. Very few civilians have any practice in spotting or withstanding the interrogation techniques police use against them.
It’s initially surprising that the Good Cop/Bad Cop routine works so well, since it’s generally so obvious. You’ve seen it in hundreds of TV shows and movies, and most people consider it a cliché. Yet law enforcement officers use it in every city, every day...because it works nearly every time. And a big reason it works so well is that when you’ve just been arrested, you’re extremely vulnerable. You’re thinking of all the horrible things that are likely to happen: going to jail, disappointing your loved ones, being publicly disgraced, losing your job, failing school, etc.
On top of that, if you’ve been in custody all day or all night, you’ll be suffering from fatigue and hunger, and perhaps other physical stresses. So, psychologically, you’re a sitting duck. And even though you know, intellectually, that the good cop is just trying to manipulate you, you cannot help having hope and trust in the one person in this awful situation who seems to be on your side. It’s a tough problem, but there is a solution. The answer is to train your mind, so that you say I’m going to remain silent. I would like to see a lawyer, no matter how upset you’re feeling or how kind the officer seems.
If you’re arrested with friends, make an agreement that no one will make statements to the police until everyone’s been able to talk to a lawyer and decide calmly what to do. Be aware of the paranoia that tends to set in after people have been separated.
Warning: Do not have a strategy discussion in the backseat of a police car!
If you’ve been arrested with someone else, and the cops lock the two of you in their car and walk away, you can bet dollars to donuts that they’re recording your conversation. So if you’re in this situation, just remind the other person that the smart thing to do is to say: I’m going to remain silent. I would like to see a lawyer. And leave any further discussion until later.
When you’re in jail, don’t talk to your cellmates about what happened to you or who was with you—because you really don’t want them testifying at your trial or sentencing hearing. Don’t even talk about mutual acquaintances. Stick to safe topics such as movies, music, sports, etc. You’ll make it a lot harder for anyone to snitch on you, if you don’t snitch on yourself.
Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971). ↩
City of Oakland Citizens’ Police Review Board 2011 Semi-Annual Report, Office of the City Administrator, Oct. 13, 2011. http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak032709.pdf, Last Visited May 22, 2014. ↩
Fernandez, Sward, and Wallace, The Use of Force / Disciplines obstacles / Few complaints against police upheld – even fewer bring serious discipline, San Francisco Chronicle (Feb. 8, 2006) p. A1, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/02/08/MNUFDISCIPLINE.DTL, Last visited May 22, 2014. ↩