Police Misconduct: A practical guide

Two police officers physically detaining a man at a protest. This could be an example of police misconduct.When we think about police misconduct, most of us think of violence and unnecessary shootings because of what’s been portrayed in the media for the past few years. The use of camera phones to record police behavior has shone a light on how many officers abuse their power and violate citizens’ civil rights. But when you consider that the police department’s main task is to protect the citizens and uphold the laws of the state, many other types of police misconduct are overlooked.

Eventually, most everyone ends up in a situation dealing with the police and the majority of these will be harmless. And while most officers do behave appropriately, some of them do not. It is important to know your rights and what to do when they are violated.


What is police misconduct?

Identifying police misconduct can sometimes be difficult, especially in high-pressure situations when tensions and emotions are high. It can take many forms, from excessive use of force to unlawful arrests to abuse in jail and prison. It refers to inappropriate or unreasonable action taken by police officers while in the performance of their duties that violates a person’s constitutional rights. While the violation of police policies should be reported so that supervisors can ensure police officers stay within the boundary lines of the police agencies involved, the violation of your constitutional rights by a law enforcement officer is significantly more serious and often requires litigation to set the record straight and seek a remedy for the harms and injustice caused. Understanding what constitutes police misconduct can help you recognize when your rights have been violated and when you need to seek action.


Different forms of police misconduct

Unlawful stop or detention in violation of the Fourth Amendment

You have the right to be free from unreasonable searches and seizures and that includes the right to be free from arbitrary police stops. The police must have a valid reason, such as a valid and articulable suspicion that a crime or traffic violation is or is soon to be committed before they can legally stop you or detain you. There are also limits to the scope of a valid detention once initiated. Police are only allowed to detain you long enough to address the reason they stopped you in the first place. And if it’s determined you did nothing illegal, you should be allowed to go on about your business. Police cannot keep you detained to try to find a new and previously unknown reason to arrest you.  And if the police are questioning you, you can always ask if you are being detained or arrested. If the answer is no, you should ask if you are free to leave, and if they say yes, you should leave immediately. You need not answer questions to leave.

Racial profiling or discrimination in violation of the Fourth or Fourteenth Amendment

Despite advancements in racial equality over the years, racism sadly still exists, and some police officers have racial biases that affect their decisions. When an officer stops, detains, searches, or arrests you based on your race, instead of having a reasonable and articulable basis to believe that you committed a crime, that is police misconduct and they are violating your civil rights. People of color experience this the most, often being pulled over or stopped on the street for no reason other than their race. It’s also a violation of your civil rights for the police to stop you because of your gender, sexual orientation, or other protected class characteristics. Officers will often provide a pretextual reason — a false reason to hide their true intentions — for an unlawful stop, detention, or search that was motivated by race. But pretextual justifications are invalid and must be challenged.

Unlawful search or seizure in violation of the Fourth Amendment

The Fourth Amendment provides citizens with the freedom from unreasonable intrusions by the government, and this includes police misconduct. This can happen when an officer searches you, your vehicle, or your home without probable cause. These types of intrusions always require that police have information amounting to probable cause to believe you committed a crime. Officers typically must have a warrant to search your vehicle or home, but there are more exceptions to this rule for vehicles than for homes. However, they don’t need a warrant when they legally arrest you, when an illegal item is in plain sight, when they make a legal traffic stop and have a valid reason to search (i.e. you appear to be intoxicated and they smell pot smoke), or when you give you consent. So, remember that if an officer asks to search you or your property, you have the right to say no. You can tell them your lawyer told you never to agree to a voluntary search.

Unlawful, false, or wrongful arrest in violation of the Fourth Amendment

An unlawful arrest is when the police physically seize and restrain you in a manner that leaves you without the reasonable belief that you can leave, without possessing sufficient legal justification. Officers need probable cause and/or a warrant based on probable cause to arrest you and take you into custody lawfully. If they act without it, they act in violation of the law and your civil rights.

Depriving you of your Fourteenth Amendment Rights without Due Process of Law

Citizens are guaranteed equal protection under the law and the government cannot deprive you of life, liberty, or property without following fair procedures, such as the right to speak, the right to certain hearings, the right to confront your accusers, the right to an attorney, and other rights that generally fall under this umbrella. These rights often must be raised in a criminal case if you are accused but can sometimes be raised in other venues and other circumstances.

First Amendment suppression and/or retaliation

The First Amendment guarantees all citizens freedom of religion, speech, the press,  to assemble or petition, and to record police officers in the performance of their public duties. If a police officer attempts to suppress your verbal expression or retaliates against you because of something you have said — so long as you weren’t threatening them or prohibiting them from doing their job — they may be violating your civil rights. Obviously, freedom of speech isn’t absolute, but simply disagreeing with an officer, calling them names, or even flipping them off is not illegal and doesn’t give them the right to stop, detain you, arrest you, or charge you with a crime. Police officers will often assert a pretextual basis for arresting or charging people in violation of their First Amendment rights, but that does not always mean officers have a proper or justifiable reason.

Malicious prosecution in violation of the Fourth and Fourteenth Amendments

A lawful prosecution requires evidence amounting to probable cause at the time charges are brought against a person. If an officer charges you with a crime as a means of harassment, to ruin your reputation, or in an attempt to justify their misconduct, they are acting in violation of your civil rights through wrongful or malicious prosecution. Similarly, police may also act in violation of your rights when they fabricate false material information in a probable cause affidavit used to justify an arrest or to seek an arrest warrant. Police officers must be truthful in these key criminal justice documents or face the consequences of police misconduct.

Excessive force

Officers must be reasonable in the force they apply so that it is used only when reasonably necessary to effectuate a lawful purpose. Force is typically acceptable when officers use it to arrest a wanted person. The force police are authorized to use to arrest can be legally increased if a wanted person flees or resists a lawfully imitated arrest, or if a wanted person threatens or obstructs an officer who is attempting to arrest them. But otherwise, officers are restricted in the amount or type of force that may be applied in any given circumstance. This includes everything from excessive shootings and physical beatings to the inappropriate or overuse of tasers, batons, chemical sprays, or K-9 units. Officer must always be justified in their choice of and use of force within the totality of the circumstances they are facing. Police officers are not legally allowed to use force to get their way or to abuse their police power.

Deadly force or jail/prison abuse in violation of the Fourth and/or Eighth Amendments

When someone dies because of excessive force or other wrongdoing by the police, detention staff, or prison guards, that is one of the worst civil rights violations that can affect a person. Whether it was on purpose or by recklessness, the officer(s) should be held accountable. Wrongful conduct can involve anything from an illegal shooting to denying someone in detention access to medical care or abusing someone in jails or prisons. If you or a loved one are seriously injured or killed because of the knowing use of significant police force or the reckless failure to protect or provide medical attention, there could be a claim against the officer for that injury.


What laws protect me from police misconduct?

The Fourth Amendment protects you from unlawful searches and seizures, while the Eighth Amendment safeguards you from cruel and unusual punishment. The Fourteenth Amendment and other Federal laws also prohibit discrimination based on race, color, national origin, sex, and religion. Furthermore, persons with disabilities are protected from discriminatory treatment under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Finally, Section 1983 of the Civil Rights Act gives you the right to file a lawsuit against a police officer if they violate your civil rights. This law was originally passed to protect citizens from government officials as well as groups like the KKK. This law makes it illegal for anyone acting under the authority of the government to deprive someone of their civil rights.


Why you need a civil rights attorney

A lawyer can play a vital role in uncovering police misconduct and pursuing justice in a police misconduct lawsuit. These types of cases are often difficult, time-consuming, and complex and very often require a specialist who is 100% committed to your rights. The Civil Rights Litigation Group has handled many successful lawsuits against the police and other jail/prison officials, and we understand the complexities of the law in Colorado. If you believe your civil rights have been violated by the police or other government officials, give us a call for a free consultation.

New Colorado laws to combat police misconduct

two officers arresting a man by his car; potential police misconductThe newest legislation in Colorado regarding police misconduct and civil rights is the Law Enforcement Integrity Act. This act was signed into law in 2022 and went into effect on July 1, 2023. It aims to increase police accountability and transparency by requiring law enforcement agencies to adopt policies and procedures to prevent and address police misconduct while building trust between law enforcement agencies and the communities they serve.

Changes included in the legislation

The use of body cameras: This measure aims to provide an objective record of encounters between officers and civilians, which can be used as evidence in investigations or legal proceedings. This law requires all law enforcement officers to wear body cameras, mandates the release of body camera footage within 21 days of a complaint of misconduct, prohibits the use of chokeholds except in situations where deadly force is justified, and establishes a statewide database to track incidents of use of force by law enforcement officers.

History has shown that officers will often lie — both for themselves and each other — regarding encounters with the public. They have lied about what people said, whether they had a weapon, and whether any physical interaction even took place. But video doesn’t lie. The Elijah McClain case in 2020 is a perfect example of this. The body cam footage captured the encounter between police officers and Elijah McClain, a young black man who died after being put in a chokehold. The footage helped shed light on the excessive force used by the officers, leading to public outrage and calls for change that resulted in this legislation. The situation with George Floyd is another good example. The officers completely left out the use of force when writing their reports, but both their body cam footage as well as phone videos taken by witnesses showed differently. And that resulted in the officers not only being fired but also prosecuted for their illegal and deadly actions.

Bias training and de-escalation techniques: Bias refers to discrimination and training officers to treat everyone equally, regardless of color, gender, age, or other discrimination classes. Data clearly shows that people of color are often treated much worse and often experience a higher rate of police violence. De-escalation refers to the range of verbal and nonverbal skills that officers can use to de-escalate a situation, make proper threat assessments, and hopefully reduce the likelihood that a situation will escalate into a physical confrontation. By providing officers with the necessary tools to identify and address implicit biases, and diffuse potentially volatile situations, the act aims to reduce the likelihood of excessive use of force incidents.

More rights for police misconduct victims

The act gives survivors of police misconduct enhanced civil remedies and allows for the decertification of officers who engage in serious misconduct. This means that officers found guilty of significant violations of departmental policies or laws may lose their certification and be prevented from working in law enforcement in the future. Preventing bad cops from remaining on the force is a big step towards reducing police misconduct.

The act also allows victims to seek compensation and justice for any harm or rights violations they may have suffered. Furthermore, the Enhance Law Enforcement Integrity Act makes officers personally liable in some lawsuits. This provision reinforces that law enforcement officers are not above the law and should be held accountable for their actions.

What to do if you’re the victim of police misconduct

While these reforms aim to increase accountability and prevent future instances of police misconduct, they can’t fix everything. If you believe you are the victim of police misconduct, you have rights but there are time limits to file your complaint. Having a civil rights attorney can help you navigate the process and get better results. Please call us for a free consultation.

Call 720-515-6165 for a free consultation.

Can the police lie to me?

When people are brought in for questioning by the police, they are expected to tell the truth or get in trouble. But what about the officers questioning you — are they bound to be truthful? In Colorado and most states, the short answer is no. They can’t lie in every instance, and they can’t fabricate evidence (Florida v. Cayward, 1989), but most of the time it’s completely legal for them to lie so it’s important to remember this if you are ever interrogated. The Supreme Court ruled in Frazier v. Cupo (1969) that police officers can lie during an investigation as long as it does not “shock the conscience of the court or the community.” For instance, they can’t tell someone that they will lose custody of their children if they don’t confess (Lynumn v. Illinois, 372 US 528 (1963). But they most certainly can lie about a lot of things that can intimidate people into confessing to crimes they didn’t commit. And as long as the court determines that a confession was voluntary and not obtained through violence, the court could allow it.


So, what do the police lie about?

When interrogating someone, the police can use every psychological trick they have to elicit a confession. They can lie about evidence they have, such as telling you that they found your fingerprints at the scene or that you were caught on camera. They might tell you that other people involved have already confessed and have implicated you as well. They might say they have already spoken to your spouse or friend who believe you are guilty. If you take a polygraph test, they can lie and tell you that you didn’t pass. The important thing to remember in these cases is that they can lie about evidence, but they can’t fabricate it. So, if they tell you they have your fingerprints on something, ask to see it. If they tell you they have video of you at a crime scene, ask to see it. And if they show you evidence that you know isn’t real, they have definitely crossed a line. Another thing they cannot do is lie to you about your rights or tell you that incriminating statements you might give won’t be used against you. Miranda warnings (from Miranda v. Arizona, 1966) are required before police officers can legally interrogate you while you are in custody. Those warnings make clear that you have the right to remain silent and that anything you say can and will be used against you in a court of law. Thus, the best practice is almost always to exercise that right and remain silent.

There are a lot of ways the police can trick people into confessing to crimes, even ones they didn’t commit. And you may think that no one would ever admit to doing something they didn’t do, but the psychological pressure of an interrogation can certainly cause someone to do so. Because of this, it’s important to always remember that you have the right to be silent and the right to have an attorney present for questioning. Police might also tell you that you will get a lighter sentence if you confess now instead of waiting for an attorney, but cops don’t decide sentencing so always ask for and consult with a lawyer before believing anything police say.

It’s also important to remember than the police don’t have to read you your Miranda rights unless they take you into custody. So, if you are speaking with an officer at the scene of a crime and they suspect you may be involved, they can intentionally tell you that you are not under arrest in order to get you talking while not technically in custody or they could lie to you about any number of things in order to get you to keep talking before they place you in custody. And if you do so willingly, your statements can be used against you in court. So always keep your guard up if you are speaking to police and there is any chance at all they think you did something wrong. Obviously, you should help the police if you call them about a crime, and often it may be in the public’s interest to serve as a witness to a crime if you have valuable information, but always remember that being innocent isn’t a guarantee that you won’t be implicated in something.


Youth are even more vulnerable when the police lie

The worst part about all this is that in most states the police can lie to kids. Some states, including Colorado (https://leg.colorado.gov/bills/sb22-023), are currently trying to pass laws to stop this. The bill didn’t pass in Colorado this year but legislators are going to reintroduce it in the 2023 session. Kids are even more vulnerable to being intimidated by the police because they either fear or trust them — and the police will absolutely use this to their advantage. Juveniles are also much less likely to know their actual rights when being questioned so it’s easy for an officer to scare them into confessing to something they didn’t do. Our brains don’t fully develop until we are in our mid-twenties, so children and even teens don’t have the same decision-making or reasoning skills that are needed during an interrogation. But until the laws do change, officers are still able to lie to them so it’s important to teach kids what their rights are and how to deal with the police. We recommend readying your children as much as readying yourself for potential police interactions. Make sure they understand that if your children are stopped, they may request a parent, guardian, and/or lawyer be present for questioning, and obviously, they have the right to remain silent.


What are your rights during an interrogation?

The Fifth Amendment protects you from being forced to incriminate yourself and the Fourteenth Amendment prohibits coercive questioning by the police. So, if a confession is coerced or involuntary, it isn’t admissible in court. Also, if the police are going to take you into custody, they should inform you of your Miranda rights — but they don’t always do that. For a confession to be considered involuntary or coerced, usually, one or more of the following needs to have happened:

  • The police deprived you of food, water or using the bathroom
  • You were denied legal counsel
  • The police promised you leniency or told you that your statements wouldn’t be used against you
  • The police threatened you in some material way (other than threats to carry out the law)
  • They physically harmed you or used a gun to intimidate you into confessing.

The court will also consider other factors such your age, the location and/or length of the interrogation, your mental health at the time, level of intelligence, or if your thinking was impaired due to intoxication. The main legal standard for proving an involuntary confession is whether the police used tactics that undermined your ability to exercise free will.


What can you do?

The most important thing you can do is be aware of your rights and choose to remain silent until you have legal counsel present when you are questioned by the police. They can’t use that against you, although many will lie and tell you that things will be better if you just talk to them — but don’t believe it. And if you were accused of a crime you didn’t commit and believe the police fabricated evidence against you, it’s important that you contact an attorney who specializes in civil rights and dealing with the police. Call us for a free consultation.

Call 720-515-6165 for a free consultation.


How did my Miranda rights change?

handcuffs, money, gavel and chain, limit on miranda rightsAnyone who’s watched a cop show has likely heard of Miranda rights. At some point during an arrest, you’ll hear the officer say, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” The wording might vary slightly from state to state, but the message is the same: the police can’t force you to answer their questions. You have the right to remain silent to avoid incriminating yourself, something every lawyer constantly reminds their clients to do.

Miranda Rights became law in 1966 as a result of the United States Supreme Court (SCOTUS) case of Miranda v. Arizona. The Miranda warning — that officers are supposed to read to anyone being arrested — is intended to protect your Fifth Amendment right to refuse answering self-incriminating questions. Now, it’s important to remember that Miranda rights only take effect after you are placed under arrest. Before that, the officers can ask you anything. Officers should, but aren’t compelled to let you know that answering their questions outside an arrest is voluntary. That is why attorneys always advise the best answer is simply, “My lawyer has advised me not to answer any questions without them present.” This is especially important if you think there is any chance at all that the police suspect you of committing a crime. Even when you aren’t – are you confident that you know all of the laws and that you have not violated any law? Keep in mind Congress passes a new book of laws every single year. With that happening, even a lawyer might have trouble keeping up with every new law that is passed. Can you ever really be sure you have not violated a law? Can anyone?


What if an officer doesn’t read you your Miranda rights?

If you aren’t read your Miranda rights before officers question you while you are in custody (something called a custodial interrogation), then the state should not be permitted to legally use what you say afterward against you at trial. Statements made in response to police interrogation without a suspect being mirandized is commonly referred to as fruit of the poisonous tree. Recognizing that type of evidence is inadmissible at trial is supposed to be the main catalyst for ensuring cops read that warning at an appropriate time because otherwise they risk losing the case and letting a supposed criminal go free — what’s the point of getting a confession from someone if it becomes inadmissible at trial?

However, just because they are required to inform you of your Miranda rights doesn’t mean they always do. The police are very skilled at trying to get information out of people and not all of them play by the book. If they believe you are guilty of something or know something, they will use every trick they know to get that information out of you, including psychological and sometimes even physical tactics. And sometimes, they don’t read you the Miranda warning. If that happens to you, you should absolutely get a good criminal defense lawyer and challenge the admissibility of the evidence.


The new SCOTUS ruling on Miranda rights

On June 23, 2022, the Supreme Court ruled in Vega v. Tekoh that if an officer doesn’t read you your Miranda rights, you cannot sue them for money damages. Basically, this means that you have no civil recourse against them if you end up having to stand trial because you were detained or prosecuted based on something you said without knowing your rights. So, even if you end up spending time in jail, losing your job, losing your reputation, and who knows what else based on ill-gotten evidence, you can no longer file a civil suit to recoup damages based on a Miranda violation. The cops may have violated your rights, but your only avenue for relief is to get the evidence suppressed in your criminal case.

That is important because before this, some jurisdictions allowed people to sue officers for violating this important civil right. Section 1983 of U.S. Code broadly authorizes civil rights lawsuits against state and local officials responsible for the “deprivation of any rights … secured by the Constitution.” Without that protection, there’s very little chance officers will face any punishment for not issuing Miranda warnings to suspects before interrogation because history has shown that police departments rarely punish their own. In fact, Supreme Court Justice Elena Kagan warned in a dissent that the Supreme Court has effectively created a new legal immunity for cops accused of violating a suspect’s Fifth Amendment rights.

Now, this ruling doesn’t mean that the evidence the cops get after speaking to you without reading your rights can be used in court, but that only comes into play if you actually know about those rights to begin with. And that is what has civil rights attorneys worried. If an officer believes a suspect doesn’t know about or understand Miranda rights, then what’s to stop them from not reading them to a suspect at all? Quite often, younger suspects or those with mental challenges may not understand their rights and will end up incriminating themselves without knowing they had another option.

And this is why, as The Clash has sung, it’s always important to know your rights.


What can I do to if the police violated my rights?

Just because you can no longer sue the police for not reading you your Miranda rights doesn’t mean you can’t sue them for other civil rights violations. If you believe you are the victim of police misconduct, such as unlawful arrest,  wrongful prosecution, or excessive force it’s important that you contact a civil rights attorney as soon as possible because there are time limits to filing those claims (typically two years from the date of the incident). The Civil Rights Litigation Group has prevailed in many cases against the police in Colorado for violating people’s rights. Give us a call for a free consultation – 720-515-6165.

Call us at 720-515-6165.


Related blog posts:

Fighting back against malicious prosecution

Record the police and protect your rights

Know your rights when questioned by the police

Police misconduct and your civil rights

Wrongful arrest? Here’s what you need to prove

Fighting back against malicious prosecution

black woman in handcuffs

In a nutshell, Malicious prosecution happens when someone — either a police officer or a private citizen — maliciously causes judicial process to commence (often through criminal charges or a civil lawsuit) against you without evidence or probable cause, and with malice. If this has happened to you and the case was decided in your favor, you may be able to file a malicious prosecution lawsuit against that party if you suffered any damages. The laws are slightly different based on whether a federal claim or a state claim is pursued, and whether a government official or private citizen caused the harm. Generally, the claim was put in place to prevent abuse of the legal system. For both federal and state claims in Colorado, you have two years to file a lawsuit for malicious prosecution, which time period begins when the case that was wrongfully initiated is terminated in your favor (i.e. when the case against you is dismissed).


What is required to sue a police officer for malicious prosecution?

The main requirement when filing a malicious prosecution lawsuit is being able to prove that the case against you was filed without an adequate evidentiary basis (usually, without probable cause) and that it was brought maliciously. Maliciously means that the officer knew or had clear and obvious information that showed you did not commit the crime, but charged you anyway, with reckless disregard for the truth. Malice can also mean the officer charged you because of his/her own ulterior reasons — a reason other than to bring a guilty offender to justice. For example, a police officer might charge you with something you didn’t do because you threatened to turn them in for abusing their power or violating a law. Or they might file false charges for discriminatory reasons based on race or gender. Or they could charge you with resisting arrest or obstruction to attempt to justify/cover-up their own illegal use of excessive force. Whatever the reason, these kinds of charges may violate your Fourth Amendment rights against illegal search and seizure, and unlawful imprisonment.

In order to file a malicious prosecution claim against law enforcement officers under the Fourth amendment, you must be able to prove five things (Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008):

  1. The officer caused or continued to cause you to be confined (imprisoned) or prosecuted.
  2. No probable cause supported the original arrest or continuing prosecution.
  3. The criminal case ended and was decided in your favor.
  4. The officer acted with malice.
  5. You sustained injuries as a result.

What damages can you claim from malicious prosecution?

Even if the charges filed are baseless, you still must defend yourself against them and that costs time and money. Court cases can drag on for years and attorney fees can pile up. And even if you win the case or it get dropped, you still (in most cases) must pay your lawyer.

Additionally, you might face public shaming and scrutiny because of the charges. Say a police officer falsely charges you with having illegal drugs in your car. Even if the case is decided in your favor, there may have been press on the case that has damaged your reputation and lost you clients. If you spent time in jail because of the charges, you probably suffered lost wages and maybe lost your job altogether. Again, these cases can often drag on for years and you could suffer emotional damage as well as professional and financial damages.

Either way, the malicious charges have harmed you and you have a right to seek compensation for that.


Suing prosecutors for malicious prosecution

man in jail, arrested, prisoner abuse

It is much more difficult to sue prosecutors for malicious prosecution because they are protected by prosecutorial immunity laws that shield them from lawsuits. These laws are designed to enable them to do their job without constantly worrying that they are going to be sued by every defendant. But there are limits to those laws and if you can prove that a prosecutor acted outside the scope of their prosecutorial decision-making and didn’t have probable cause for charges to be advanced against you, you might have a case. However, such claims are most often filed against the involved officers — who gather and present evidence at the time of arrest — and not the prosecutors.

In 2020, Colorado passed a law that allows for a state-based causes of action for civil rights violations without qualified immunity protection for police officers and now some lawyers and lawmakers are pushing for a limit to prosecutorial immunity protections as well.


An example of a malicious prosecution case

In February 2017, Juan Valenzuela was accused by Denver Police of using a fake ID while attempting to catch a flight at Denver International Airport. The ID had been through the wash so it was slightly damaged, but it was not fake. Valenzuela worked as a prison guard and offered other forms of ID, including his work ID that had a photo. He even had his supervisor at the prison call and verify his identity. But the officer simply decided that the ID felt fake and arrested Valenzuela without doing the proper research. Valenzuela spent a couple days in jail and then lost his prison job because the Denver DA decided to prosecute him and the prison couldn’t employ him until the felony case against him was resolved. It was several months before the prosecution did the necessary research and determined that his ID was valid and dismissed the case. By this time, Valenzuela has suffered financial losses from being out of work and emotional stress as well. The Civil Rights Litigation Group represented him in his case against the Denver Police officer and he was awarded $500,000.


How do you fight back?

If you have been wrongly prosecuted and believe your case meets the requirements, you should contact a Colorado attorney as soon as the wrongful case against you has been dismissed in your favor. Do not take a plea bargain if you believe the charges are without basis, as that would not lead to the required “favorable termination.” Call and seek advice if you are unsure whether a criminal resolution you have been offered will fit within the requirements to preserve your case.

The Civil Rights Litigation Group has successfully fought malicious prosecution claims many times before and can help you vindicate your rights while seeking damages. Call us for a free consultation.

Call 720-515-6165 for a free consultation.


Related blog posts:

Know your rights when questioned by the police

When is recording conversations legal in Colorado?

Police misconduct and your civil rights

How do I fight illegal search and seizure in Denver?

Record the police and protect your rights

One of the best things to happen for civil rights cases has been the cell phone video camera. Before cameras were in every cell phone, cases against the police often came down to “he said, she said” and the courts and juries often sided with the police. Eyewitnesses can be mistaken but videos rarely lie. If you are ever in a situation with the law, take the opportunity to respectfully record the police and protect your civil rights.


Is it legal to record the police?

If you are in a public place and don’t do anything to interfere with the police, the First Amendment gives you the right to record them while they are working. Not only is it about your personal rights, but it also involves the public’s right to know how public servants are behaving on the job. For example, in Fields v. City of Philadelphia, the Third Circuit Court of Appeals affirmed the right to record. “We ask much of our police. They can be our shelter from the storm,” wrote Judge Thomas Ambro. “Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

While the right to record the police has not yet been affirmed by the Supreme Court, a prevailing weight of the academic and legal community have affirmed it, including six out of 12 circuit courts in the U.S. These and many other district courts have recognized this right and agree that recording the police is legal under most circumstances. Cases are currently before other circuit courts, including the Tenth Circuit Court of Appeals, to address the issue and will likely lead to full consensus. The Civil Rights Litigation Group currently has several cases that rely on the prevailing weight of circuit authority in asserting the right.


Why should we record the police?

The videos that have come out in the past few years have shed some much-needed light on the actions of the police and their willingness to lie to protect themselves. The George Floyd case is a perfect example as the initial police reports paint a very different picture than what was shown in the videos. Had the incident not been recorded, it’s possible that those officers would still be on duty. The videos taken that day not only showed the public the truth but ended up being instrumental in the officers being held accountable for Mr. Floyd’s death.


When is it legal to record the police?

There are two places where you have the right to record the police: when they are on public property or when they are on your personal property. When a police officer is in public, they have no expectation of privacy and therefore you have the right to record their actions so long as you don’t harass them or obstruct them in any way. It’s best to quietly stand on the sidelines at least 15 feet away so that there is no reasonable argument that you are somehow interfering with their duties. There have been several cases where courts have ruled people can secretly record the police, but clearly exercising your right with a phone in clear view may also deter them from coming after you. When you record police, it is always best to do so safely.

It’s also important to note that you can only record the police when they are on duty. If you happen to see them off duty but in public, don’t record them. Like you, they have some rights to privacy when they aren’t working.


What to do when you record the police

  • Most important, do not interfere with them at all. Keep a safe distance away and don’t harass or yell at them. If an officer asks you to move back, take a few steps backward to demonstrate that you intend to record without interference.
  • Keep your phone in full view so they are aware they are being recorded. People tend to behave better when they know their actions are being recorded and it’s better to prevent bad behavior than go to court over it, unless your purpose is to catch them lying or engaged in unlawful behavior.
  • Stay calm and courteous. Remember that anything you say will also be recorded. On that note, try to stay as quiet as possible so that any audio of the police can be heard on the recording.
  • If the police ask you to move for safety reasons, comply but keep recording. Ask them why you are being asked to move and how much the officer is asking that you move so that it is recorded and noted that you are obeying them. Again, remember to stay calm and courteous.
  • Barring extenuating circumstances, remember that a police officer cannot search your phone without a warrant, even if they arrest you. You are not required to give them your password or delete anything just because they tell you to.
  • If it looks like the police might confront you about your recording, email it to someone you trust immediately. This way you can preserve a copy of it in case they do try to delete it. Don’t email it to yourself because they could delete that from your phone if they gain access to it. The ACLU offers an application that allows you to turn on your video recorder with one tap and it also automatically uploads the video to the ACLU once the recording stops so that it cannot be deleted. See their website for details.
  • Know when to walk away. Remember that just because you have the right to record them doesn’t mean they might not still act out against you. If they order you to do something, don’t put yourself in danger just to make a point. But if they do take action against you, it may be even more important to keep recording so that you can prove that they forced you to stop recording, turned off your phone, took your phone, or otherwise did something that would chill a person of ordinary firmness from exercising their First Amendment right to record.
  • Finally, if you do end up recording something important, don’t post it online or on social media because it could end up hurting the case. It’s best to show it to an attorney first because they will know how to use it and how to properly get the media involved without risking libel or slander.


What to do if your rights have been violated by the police

If the police have mistreated you or violated your civil rights, it’s important to speak to an attorney who is familiar with these kinds of cases and dealing with the police. The Civil Rights Litigation Group has handled numerous cases involving police misconduct and we know how the system works. Call us for a free consultation and we can discuss your case.

Call 720-515-6165 for a free consultation.


Related blog posts:

Know your rights when questioned by the police

When is recording conversations legal in Colorado?

Police misconduct and your civil rights

How do I fight illegal search and seizure in Denver?

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Civil Rights Litigation Group

1543 Champa St., Suite #400

Denver, CO 80202

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