Mimesis Law
16 August 2017

Filling The Hole In The Black Lives Matter Agenda

Aug. 28, 2015 (Mimesis Law) — In his discussion of the Black Lives Matter policy agenda at the Washington Post, Radley Balko called it “practical, well-thought out, and in most cases, achievable.” And indeed, it includes a number of important “solutions” that could make a significant difference if policy makers are brave enough to actually implement them.

Despite its many positive proactive ideas, the agenda is missing one huge piece to the puzzle. As worthwhile as it may be to create a better system, it means nothing without the ability to enforce the rights, and the violations of those rights, through the legal system. There is a gaping hole in the agenda to address the need for an overhaul of the way state courts “handle” lawsuits against police officers for the harm they cause.

In Arizona, the precursor to any lawsuit against a cop requires filing of notice of claim within 180 days after a cause of action accrues. In comparison, you generally have two years to file a wrongful death lawsuit when a government actor isn’t involved, and there is no statute of limitations for filing criminal homicide charges against individuals. Even the least serious felony offenses in Arizona have a seven-year statute of limitations, and prosecutors have a full year to bring a misdemeanor charge.

Yet, the initiation of an action against a police officer for the wrongful death of a citizen requires a notice of claim in 180 days. It’s clearly a far more stringent set of rules when an individual sues against the government. Shockingly more stringent, though the only difference is that the defendant happens to be a cop.

Often, police are still somewhere in the midst of their own internal investigation within that first six month window. When the investigation is ongoing, they are hesitant to reveal much, or may actively conceal their findings, which leaves the family of a victim without sufficient information necessary to file a proper claim. Yet, still grieving families are constrained to submit their notice of claim, not just outlining all the facts upon which their claims are based in sufficient detail to show liability, but also a specific demand for damages.

The law goes so far as to place an affirmative duty on victims’ families to conduct their own investigate into whether the police acted wrongfully, should facts exist that are later deemed to put them on notice. The courts say that notice can be triggered by things they didn’t actually know but “should have known.”

Typically, the government will simply ignore that all-important letter completely until a lawsuit is actually filed, at which point it will argue the lawsuit should be barred because the letter was insufficient. This is a sneaky little trick designed to conceal any issue that might be corrected or amended within the requisite 180 time period until it has elapsed. Oops, too late. You lose.

Even though such arguments as to the inadequacy of notice are usually worthless, they are endlessly litigated by the government. Its defense lawyers will raise arguments that, if made by anyone else, would get them laughed out of court. When it comes to challenging a suit against a cop, courts take them very seriously. These ridiculous barriers to suit, combined with the courts’ willingness to be embrace them, deter many good lawyers from even taking these cases. That means that the families of victims of police killings struggle to find competent counsel to represent them, further complicating their ability to obtain relief.

Prosecutors routinely file charging documents against defendants that offer only the barest and most cursory bits of information. A broad range of dates and a generic recitation of the elements of the offenses suffice, even though they hardly elucidate the basis for the charges. Yet, courts tend to take no issue with that, despite the constitutional mandate that it be adequate notice for the defendant to prepare a defense.

And even in that rare instance where the charging instrument is so utterly deficient that a court requires more, the rules give prosecutors the ability to correct defects with ease. The failure isn’t fatal, unlike a notice of claim. Even if it clearly states when the incident happened, what happened, and how that gives rise to liability, it will be met with extensive litigation, even if it’s the most idiotic things. Any perceived inadequacy in the claim letter, real or imagined, will kill even the most meritorious cases, and no error or omission too trivial for the government to obsess over. In one of my own cases, the government’s defense attorney argued with a straight face that she was unaware of the theory of liability where a cop shot an elderly man eleven times in the face without provocation.

If you get past the notice of claim hurdle, the government will then waste enormous amounts of time litigating questions like whether a police department is a jural entity capable of being sued, whether there was a duty involved at all, and whether the officer violated a “clearly established right,” like the one not be killed for nothing. And that’s just the tip of the litigation iceberg.

There will also be motions to dismiss for failing to state a claim and motions for summary judgment. The entire scheme is cleverly designed to wear down plaintiffs, overburden their lawyers, eat up years and years and keep these cases from every being heard by juries. The government’s defense attorneys will eat well on the fees earned from tormenting the families of victims and their lawyers, and in the end, the families may even get stuck owing costs should the court throw out the case short of trial based on one of the many doctrines invented purely to protect cops from the consequences of their actions.

Black lives do not just matter in the abstract, but to the living, breathing, loving families of the victims of police killings. Each and every life lost matters not just to the movement, but to human beings, who will live without the comfort and support of their loved ones long after the marchers have gone home.

Those people, the ones who suffer when police misconduct harms their loved ones, need a meaningful remedy against the officers and the departments. Indeed, the Black Lives Matter Agenda needs these families who remain behind to have the ability to fight to ensure that the agenda is honored, that the police not return to their old ways after the chanting has died down. The way to accomplish this is to assure the existence of fair and viable legal redress for the harm police cause. Adding much-needed changes to the way courts deal with lawsuits against police officers would fill a major gap in an otherwise well thought out and highly impressive agenda.

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    […] even if you tend to agree with the agenda, its aspirational goals are still a ways from translating into a solution of the problem for everyone.  And if you have issues with the agenda, well, no one cares because […]