Police misconduct is more common than you may think, and often goes unreported and unaddressed.
Why?
Because victims of police misconduct are often fearful of the consequences if they complain or fight back. Because police officers know that their supervisors and their departments will get behind them in all but the most egregious of cases. Because, in most cases, there are no consequences for abusing their authority.
In this article, we will look at the very real and pervasive problem of police misconduct in South Carolina, including:
- How we define police misconduct,
- Types of police misconduct cases, and
- How to file a lawsuit for police misconduct.
What is Police Misconduct?
Police officers are sworn to serve and protect, but their actions often go beyond what is lawful and necessary.
Police officers are human – which means they make mistakes, lie, cheat, get angry, have biases and prejudices, and sometimes resort to violence when it is not necessary. Because they can – they have a badge of authority, a gun, a taser, and are often (wrongly) trained to overwhelm a suspect pre-emptively to protect themselves.
Not all these actions are misconduct, however.
Police are allowed to lie to suspects. They are given great latitude when it comes to honest mistakes. We give them the authority to arrest, subdue, and use violence when it is absolutely necessary.
But, when they abuse their position for personal gain, intentionally harm someone without justification, arrest someone without probable cause, or harm someone negligently without concern for their civil rights, you might be able to hold them accountable in a court of law.
Types of Police Misconduct Cases
Police misconduct typically refers to any police action that violates a person’s constitutional rights. Some of the more common examples of police misconduct include:
- Use of excessive force – when a police officer uses more force than is necessary to control a situation, it can lead to injury or even death. Excessive force may be used in situations like protests, riots, or even routine traffic stops.
- Wrongful arrests – when an individual is arrested without probable cause, that is a false or wrongful arrest, whether it was motivated by racial bias, misunderstanding of the law, or an officer’s anger at someone who doesn’t “respect their authority.”
- Malicious Prosecution – malicious prosecution is when a police officer files false charges against an individual with malicious intent, whether it is motivated by revenge, trying to cover up a mistake, or other reasons.
- Illegal Searches and Seizures – the Fourth Amendment protects individuals from unreasonable searches and seizures. If a police officer searches an individual or their property without a warrant or probable cause, it is a violation of their constitutional rights.
Do You Have a Case?
Do you have a case?
While everyone agrees that police misconduct is unacceptable, not everyone will admit when it happens – we all want to believe that we can trust the police, they have our best interests at heart, and they would never violate the law themselves…
In many cases, proving police abuse is an uphill battle with many hurdles:
- Judges who are biased in favor of police – consider that you are asking the government (a judge) to rule against the government (the police) and force them to pay a verdict or change their operating procedures,
- Jurors who are biased in favor of police – Americans have been conditioned since kindergarten to trust police officers and overlook the atrocities that are sometimes committed by them,
- Qualified immunity – police are shielded from immunity for their actions unless their actions “violate clearly established law,” a doctrine that is often twisted by courts to give police every benefit of the doubt even when their actions were clearly “over the line,” and
- The SC Tort Claims Act – limits the causes of action that can be brought under state law, the statute of limitations for suing government agencies, who can be named as a defendant (agencies but not individual officers), and caps the damages that can be sought under state law.
How to File a Lawsuit for Police Misconduct in SC
“The King can do no wrong…”
This is the starting point for any lawsuit against the government. The United States adopted the doctrine of “sovereign immunity” from England’s common law – preventing any lawsuit against the government except in situations where the government gives us permission to sue…
Two ways that the government has given us permission to sue are 1) Tort Claims Acts (state or federal) and 2) 42 USC §1983 (for violation of civil rights under color of state law).
SC State Tort Claims Act
The SC State Tort Claims Act waives government immunity from lawsuits, but only in specific circumstances.
The SCSTCA limits police misconduct lawsuits by:
- Limiting the types of causes of actions that can be filed against government entities,
- Limiting the defendants to agencies or municipalities – individuals cannot be named as defendants,
- Limiting the statute of limitations to two years unless you file a verified claim within 180 days of the incident,
- Capping the total damages that you can recover (regardless of the actual damages the police caused), and
- Prohibiting punitive damages, no matter how egregious the police abuse was.
§1983 Actions
42 USC § 1983 gives us permission to sue the government (or anyone else) for violations of our civil rights “under color of law.”
This means that you can sue individual police officers as well as anyone who conspired with them to violate your constitutional rights or any “rights, privileges, or immunities” under the federal or state constitutions or state or federal law.
A §1983 action:
- Does not cap damages,
- Allows for punitive damages in the most extreme cases,
- Only allows you to name the individuals as defendants (with limited exceptions), and
- Must be filed in federal court unless there is an accompanying state-law cause of action under the SCSTCA (and even then the defendant can have the case removed to federal court).
Questions About Police Misconduct in South Carolina?
The Charleston, SC, civil rights attorneys at the Boles Law Firm can help you to determine liability, gather the evidence you will need in court, and recover the maximum compensation that you are entitled to for your injuries.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston, Greenville, Walhalla, or Walterboro offices, or send us a message through our website.
