Your Police Misconduct Question – Answered by a Chicago Civil Rights Lawyer.
What kind of “civil rights” cases do we handle?
We focus almost exclusively police misconduct cases. That means police brutality, wrongful death, malicious prosecution, false arrest, and taser abuse. We also handle select criminal cases for clients facing criminal prosecution as well.
For the most part, the Nixa Law Firm does not do other kinds of civil rights cases, such as employment cases or housing cases or things of that nature. Usually, the first question we ask is whether your case involves an incident with the police.
Can you sue the police?
I wish I could provide a formula so people would know if they have a case. But it depends on so many factors. I can almost always tell you on the phone whether I think you might a case and then can set up a meeting with you to discuss your options.
How do you find an attorney?
Chicago has a number of attorneys who focus on police misconduct cases. If you were the victim of police misconduct, I always recommend that you get an attorney that specializes in civil rights cases. The best way to find a good civil rights attorney is to do your research online and possibly to talk to attorneys who you are referred to through friends or others.
The most important thing is that you feel comfortable with the attorney. That you feel like they spent the time to get to know you and explain all of your questions.
If you live in Wisconsin or Indiana it is harder to find a civil right attorney to take your case. Often local attorneys in those areas do not want to sue police departments. And civil rights attorneys from Chicago may or may not be licensed in those locations.
What information will your attorney need?
So what information does an attorney need to determine if you have a case? In false arrest cases, I will ask you about the circumstances of your arrest to try to determine if the police lacked probable cause. This involves trying to determine what it was that led the police to arrest you. In many cases, to prove false arrest or malicious prosecution, it is required that you won your criminal case, or at least were convicted of a lesser charge, so your attorney will ask about that. You must file your case within a certain amount of time, called the statute of limitations, so your attorney will need to know when you were arrested and when you won the criminal case.
In police brutality cases, I will want to know what your injuries are. Whether you went to the hospital. How the police caused them. What you were doing when it happened. And who witnessed it. If you were charged with a crime, such as battery to a police officer or resisting arrest, I will want to know what the result of the criminal case was. Just because you were convicted or plead guilty does not mean that you do not have a case.
How do you choose an attorney?
Choosing the right attorney is essential. You and the attorney will be working together closely over the next year or two, which is why you need someone you can trust, who you like, and who explains things to you.
The best way to choose an attorney is to meet with them in person. See how they make you feel. When you talk to the attorney, ask yourself if you think you will work well together.
Ask yourself, does the attorney takes the time to get to know you? Does he or she care what really happened in your case? How well does the attorney explain how the lawsuit will work? And how well does he or she explain your options?
You need an attorney who will explain how a lawsuit will work and present you with your options in a way that makes sense to you. You need an attorney who is patient enough to take the time to explain things so that you understand them.
Importantly, never hire an attorney who promises you a certain result in your case. Any attorney that is promising you a certain result is desperate and should not be trusted. The fact is that there is always uncertainty in any case. Instead of false promises, you want your lawyer to give you the complete, unvarnished truth about the strengths and weaknesses of your case.
And your attorney’s views of the case may change over time, as more evidence is uncovered. A good attorney will fill you in on these developments and help you understand how they fit into your case.
How much does it cost to hire a civil rights attorney?
Most civil rights attorneys, including the Nixa Law Firm, operate on a contingency fee basis. That means that you do not pay anything unless we recover compensation for you.Under this model, you pay the attorney a predetermined percentage of the amount that the attorney recovers for you.
When it comes to settling your case, you generally have the right to decide whether to settle a case or take it to trial, and your attorney will provide you with recommendations and advice as to whether to accept a settlement offer. An experienced civil rights attorney has likely seen hundreds of cases, some similar in some ways to yours, and the attorney can draw on that experience to help guide you in making important decisions in your case, such as whether to settle and for how much.
How much time do you have to sue?
This is one of the most important questions I get. While this is not intended to be legal advice, and you should consult an attorney as soon as you can. In general, in Illinois:
You have two years from the date of the incident to sue for brutality.
State law claims, such as assault and battery, must be brought within one year of the incident.
Wrongful death claims must also be brought within one year of the incident.
False arrest claims must be brought within two years of the arrest.
Malicious prosecution claims must be brought within one year of the date you won your case.
**Always call and attorney as soon as you can. I get calls all the time from people who waited and lost out. Too many people think they have two years to sue, and that is simply not true. It depends on the type of case, and what the issues are. Call an attorney ASAP to get the right advice.
How does a civil rights lawsuit work? What will be your role in pursuing the case?
Once you’ve found an attorney, the attorney will meet with you and explain your options. The attorney may then request records such as police reports and medical records to support your case, and the attorney will file your case in court.
The first step to filing a case in court is drafting the complaint. The complaint states in very general terms what the lawsuit is about, what happened to you, who is to blame, and it sets forth the legal “cause of action” under which you are suing, such as the U.S. Constitution or state law.
It is important to be patient. A civil rights case can take over a year to get to trial, and often takes more than that.
The most important things that you will do during your case are:
(1) Stay in touch with your attorney. If your phone number or address changes, make sure to tell your attorney right away. The day it happens.
(2) A few months after your case is filed, you will need to meet with your attorney to answer “Interrogatories.” These are written questions that the City and police department will send to your attorney. Your attorney will sit down with you and help guide you through answering these questions.
(3) Give a deposition. This is the most important thing you will do during your case. A deposition is where you will formally state “on the record” and in detail what happened to you. The deposition will take place at the office of the police department’s attorney. During the deposition, you will be asked questions under oath by the Police Department’s Attorney. Your attorney will be there sitting next to you and can make objections, but you essentially have to answer every question you are asked. Everything you say and everything you are asked will be typed by a court reporter who will be at the deposition. What you say at your deposition is the most important part of the case, so it is essential that you are honest, and that you think through your answers. You attorney can help you prepare, but ultimately, you are the one who is answering the questions and who must do your best to tell your story.
(4) If your case does not settle, then you will testify at a trial in front of a jury. This is your opportunity to bring to light what happened to you. It is also your attorney’s opportunity to hold the police department accountable. Your attorney will help guide your through the process and make sure you are comfortable.
If you lost your criminal case, can you still sue?
So if you were found guilty, can you bring a civil rights case? The bottom line is it depends.
If you want to bring a civil rights lawsuit, it’s always better if you won your criminal. However, sometimes this isn’t possible. People often plead guilty for a number of reasons. Going to court in a criminal case requires people to take off work, and sometimes prosecutors and the police will continue the case indefinitely to tire you out and try to force you to accept a plea deal. The fact is that innocent people plead guilty all the time. The system is set up that way.
The justice system gets things wrong way more often that many people want to admit.
Being convicted of a crime such as resisting means that you likely will not be able to deny that you committed the conduct for which you plead guilty to. But, that does not mean that everything else the police did was justified.
In one of the leading cases on this topic, Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir. 2008) the court of appeals decided that even when someone is convicted of battering an officer, that person can still pursue a case for excessive force if the officer retaliated or used unreasonable force before or after the person allegedly struck or resisted the office.
In the Gilbert case, an inmate was convicted of striking a prison guard through an opening in his cell door, but the guards purposefully tripped him and wrenched his arm, separating his shoulder. The Gilbert court made it clear that although the prisoner would not be allowed to deny that he struck the officer, he could still sue because the officers used unreasonable force. Otherwise, officers would be allowed to use unlimited force on someone who resists and could escape liability if the person was convicted.
The law that governs how a guilty plea might affect your case is one of the more complicated areas of civil rights law.
Only a skilled civil rights attorney can answer this question. I would advise discussing whether you have a case with a dedicated civil rights attorney.