Civil Liability
of Law Enforcement Agencies & Personnel

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Code of Silence

     Monthly Law Journal Article: Code of Silence Litigation - Officer Use of Force, 2013 (1) AELE Mo. L. J. 101.

     An officer went to a hotel room in response to a call that someone was trying to break in. When the officer arrived, a woman walked out of the room, and he entered. Inside, he encountered a man in the bathroom, talking to a woman who was the mother of his child. Neither of them were armed or involved in any crime. The officer pushed the bathroom door open, knocked the man to the floor, used his Taser on him, knocking him to the ground a second time and then shot him several times, killing him. He then planted a handgun taken from his patrol car on the deceased. There was no evidence of gun powder on the dead man's hands and no fingerprint evidence showing that he had handled the gun. The dead man's mother did not sue the officer, but sued the sheriff in his official capacity, claiming that the officer's actions were based on an unofficial policy of falsely accusing unarmed people of posing a threat to justify using deadly force against them, planting guns at the scene of a shooting, and giving false statements to justify the use of deadly force. A federal appeals court upheld summary judgment for the defendant. The evidence showed no indication of any policy or custom that was the moving force behind the officer's actions. The court's opinion did not discuss whether the use of the Taser had been justified, or in what mode, dart or stun, the Taser had been deployed. Gandy v. Reid, # 11-14828, 2013 U.S. App. Lexis 2209 (Unpub. 11th Cir.).
    An arrestee claimed that three officers violated his constitutional right of access to the courts by refusing to disclose who used excessive force against him in the course of his arrest. He believed that one or more of six officers on the scene threw him to the ground and struck him several times in the back of his left thigh with a baton or flashlight. Because he was face-down on the ground, he could not identify the officer or officers responsible. He also argued that the city violated that same right by adopting a "conspiracy of silence" concerning such disclosure, preventing him from knowing who to sue. While the federal appeals court assumed, for purposes of the appeal, that the officers' alleged conduct was unconstitutional, it found that the issue of whether an evidentiary cover-up by officers could violate an individual's right of access to the courts was not clearly established. The officers, therefore, were entitled to qualified immunity, but the city was not entitled to summary judgment since the claims against it were not "inextricably intertwined" with the claims against the officers. Lynch v. Barrett, #12-1222, 2013 U.S. App. Lexis 290 (10th Circuit).
     A federal jury in Chicago returned a verdict in favor of a plaintiff and against the city on a claim that the city had a persistent widespread custom or practice of protecting officers from citizen complaints. The suit had been brought by a female bartender who had been assaulted by an off-duty officer. A persistent widespread custom or practice had been alleged to constitute a de facto policy of concealing or suppressing investigations into police officer misconduct, along with a “code of silence” within the police department. The jury also found that the officer conspired with others under color of law in violation of the plaintiff’s First Amendment rights to free speech. It awarded $850,000 in damages.Obrycka v. City of Chicago, #07 C 2372, U.S. Dist. Court (N.D. Ill. November 13, 2012). The court subsequently denied a motion to vacate the judgment concerning the "code of silence." The court found that the "judgment’s precedential value weighs against granting the parties’ motion to vacate the judgment." Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 179990 (NJ.D. Ill.). The city stated that would pay the plaintiff compensatory damages in the amount of $850,000, plus costs and reasonable attorney’s fees in an amount yet to be determined. The city also stated that it will forego its right to appeal pursuant to the parties’ postjudgment settlement. In an earlier decision, the trial judge found that there was evidence that the defendant officer tried to intimidate and threaten the victim from disclosing the videotape of the incident because he knew, that without the tape, there would be no case against him. Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 22818 (N.D. Ill.).
     In McGregory v. City of Jackson, Mississippi, #08-60944, 2009 U.S. App. Lexis 13873 (Unpub. 5th Cir.), an arrestee's claim that a city was liable for false arrest and excessive use of force was rejected by a federal appeals court. The plaintiff's main argument, the court noted, was that he faced excessive force from an officer who allegedly kicked him in the ribs and then handcuffed him. Further, he argued that such force was the result of a police department custom that amounted to ignoring excessive force complaints, as well as a "code of silence" among officers, and a failure to investigate excessive force incidents. There was, however, no identification of a policymaker prior to his argument on appeal, and no evidence that the then identified policymaker, the city council members, were aware of the alleged facts in the case or of the purported code of silence.
     In Fairley v. Andrews, #07-3343, 578 F.3d 518 (7th Cir. 2009), rehearing, denied by Fairley v. Andrews, 2009 U.S. App. Lexis 21263 (7th Cir. 2009), cert. denied by Andrews v. Fairley, #09-745, 130 S. Ct. 3320 (2010), the appeals court rejected a First Amendment claim brought by two jail guards who quit after coworkers threatened to kill them for reporting excessive force on inmates. “The purported code of silence is a ban on filing complaints about guard-on-inmate violence. Such a policy might be foolish; it might expose the County to other lawsuits; but it does not offend the first amendment, because what one guard says about another through the grievance system is part of the job, and the employer can discipline a guard for poor performance of work related tasks.”
     In Katt v. New York, #95 Civ. 8283 151 F. Supp. 2d 313 (S.D.N.Y. 2001), a former civilian employee of a police department was awarded $400,000 in compensatory damages for a sexually hostile work environment. The plaintiff said that her failure to initially complain about sexual harassment was based on tacit and explicit cues from others never to report or complain about the official misconduct of police officers.
     A female police officer in Simon v. Naperville, #98C-5263, 88 F. Supp. 2d 872 (N.D. Ill. 2000), complained that she was threatened with retaliation for reporting sexual harassment by a training supervisor. The court was unable to find that the city exercised reasonable care to promptly correct such harassment. The plaintiff may not have unreasonably failed to take advantage of any preventative or corrective opportunities, where she had legitimate concerns about harassment.
     In Blair v. City of Pomona, #98-55548, 223 F.3d 1074 (9th Cir. 2000), an officer asserted that he had faced retaliatory adverse employment consequences and threats for reporting misconduct by fellow officers which included not only leaving early and drinking on duty but actual crimes including stealing money, throwing a couch upon a suspect while executing a search warrant, and, taking heroin from one suspect and planting it on another. The appeals court held that the plaintiff presented evidence sufficient to create issues of fact regarding whether defendant had a custom or policy of deliberate indifference to plaintiff's right to inform his supervisors of misconduct.
     Plaintiffs in Brandon v. Allen, #C-78-2076, 516 F. Supp. 1355 (W.D. Tenn. 1981) argued that they were attacked by an off-duty officer without provocation, but also that the officer’s violent propensities were well known, and that he should have been dismissed. The Director of the department could face liability because of his failure to take proper action to become informed of the officer’s dangerous propensities, in part because his procedures were highly conducive to “covering up” officer misconduct. The case was the subject of further proceedings in Brandon v. Holt, #83-1622, 469 U.S. 464 (1985), rejecting a claim of qualified immunity for the director and allowing the addition of the city as a party. Subsequently, in Brandon v. Allen, #78-2076, 645 F. Supp. 1261 (W.D. Tenn. 1986), the plaintiffs were awarded a total of $51,310.75 in compensatory damages and $50,000 in punitive damages, as we well as attorney's fees of $116,278.75 and costs of $5,876.23.
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