Cops, like everyone else, make mistakes. Sometimes these mistakes are minor, like putting the wrong phone number or DOB on your ticket, or misspelling your name. These are not good reasons to sue the cops, as you don’t have a “right” to have your correct birth date written on your citation, and, generally speaking, these types of mistakes don’t harm you.

But if they arrest you without probable cause, or searched you without probable cause, or injured you (physically or mentally) without valid justification, that’s a big deal, and it can be a violation of your civil rights. Those are the kinds of mistakes that it might make sense to sue them for, both to get compensation for yourself, and to encourage them not to make the same mistakes again.

Bad arrests, bad searches, and excessive force are three common issues which I go into a little more detail about below…

The 4th Amendment of the Constitution guarantees the right to be free from “unreasonable seizures.” A “seizure” can be an arrest like most people think of it–getting booked into jail, getting your mugshot and fingerprints taken, etc.–but it can also be a simple detention, such as being pulled over on the side of the road and not allowed to leave. Both of these types of seizures can be illegal, depending on whether the police officers had reasonable grounds to make them. 

It’s worth noting here that the cops can be wrong about something, but still have reasonable grounds to make a seizure. For instance, if an officer pulls you over, smells alcohol on you, and you fall on your face during the field sobriety tests, you’re probably getting arrested for DUI. If the tests come back and show that you don’t have any drugs or alcohol in your system (maybe your friend spilled a beer on you and you’re just really clumsy), the officer was wrong about you being DUI, but I think most judges would not say the arrest decision itself was wrong or illegal. 

But if the officer pulls you over, doesn’t smell alcohol on you, says you “failed” the field sobriety tests (even when you did ok), and arrests you on a hunch that you might have drugs in your system, that can absolutely be an illegal arrest. It just depends on the specific facts of the situation–so it’s something you’d want to talk to an attorney about.

Like seizures, the 4th Amendment also protects you against “unreasonable searches.” Common searches include searches of your house (which almost always require a warrant), searches of your car (which don’t usually require a warrant, but DO require probable cause), and searches of your body. Searches, by their very nature, are intrusive and often unpleasant and embarrassing.

A law enforcement agent is allowed to use force against you in certain circumstances. If there is probable cause to make a legal arrest, obviously the officer making the arrest is allowed to put his hands on you and put you in handcuffs. However, like searches and seizures, the use of force must itself be reasonable. Commanding a K9 to attack and bite a suspect who is not resisting or fleeing is probably going to be an example of unreasonable force, but we’ll see. Between the extremes, there is a wide spectrum of situations involving handcuffs, tasers, impact weapons, and take-downs which may or may not be reasonable in the circumstances–like the other types of claims, there’s no bright line rule, so if you’ve had force used against you during an interaction with police, you should discuss it with an attorney.

Most lawsuits against law enforcement agents are done in federal court, through something called a “1983 Action.” 1983 does not refer to the year Al Pacino’s Scarface came out in the theaters (also Rick Moranis’s Strange Brew (if you’re into that kind of thing)), but to section 1983 in title 42 of the Federal Code, which is the law that allows citizens to sue “state actors” for violations of their civil rights. 

Like any other civil lawsuit, the process involves choosing exactly whom to sue, drafting a “complaint” that outlines your claims against them, filing the lawsuit in Court, serving the defendants, going through the discovery process, and litigating the case–sometimes that means going all the way to trial, and sometimes it means reaching a settlement before trial (and of course, it can also mean having the case dismissed, if you are unsuccessful). 

Obviously, the process is complicated, and it’s easy to do something wrong, so, again, I highly recommend getting a lawyer’s help. Please reach out to discuss it with me.

The Utah State Bar forbids defense attorneys from doing “contingent fees” for defending someone accused of a crime. That means that I cannot represent someone for a DUI and say “you only have to pay me if I win your case.”

However, when a client decides to sue the police, it is not a criminal case but a civil case, so I am allowed to do a contingent fee to represent you. That means, if I take your case, I can do it under an agreement where I only get paid if we win the case by getting you a monetary award. The federal law under which these lawsuits are filed also provides that the government may have to pay for the attorney fees in a successful lawsuit. So there are multiple ways for a lawsuit to be funded without any up-front cost to the client.

There are basically two kinds of “relief” you can get from a 1983 federal lawsuit against law enforcement agents in Utah: injunctive relief and monetary relief. Monetary relief is what it sounds like: money to compensate you for the harm done by the violation of your rights. Injunctive relief is a fancy way of saying that someone is ordered by the Court to do something. An example would be the Court ordering a police agency to change its policies or change its training program to try and correct a problem. When filing a 1983 action, you do not have to choose between these types of relief; you can ask for both.

As to how much monetary relief you might get if you sue the police, that depends on a couple things: the amount of harm you suffered and the egregiousness of the cops’ conduct. Typically, monetary relief is designed to “make you whole.” That’s another way of saying that the amount of money you get should be equivalent to the amount of harm you suffered from the wrongful conduct. It’s always hard to put a number on these things, but being arrested, spending time in jail, missing work, or standing outside in the snow for an hour while the cops dig through your car are all types of harm that can be compensated for. Obviously, physical injury is also a type of harm that can be compensated. Additionally, if the cops’ behavior was especially bad, you can ask for punitive damages as well. The goal of punitive damages is not to repay you for the harm you suffered, but to punish the state agents in a way that discourages them from doing the same thing again.

Of course, there are also cases where you could “win” a lawsuit by proving that the government agents violated your constitutional rights, but you didn’t suffer much harm and the behavior wasn’t so bad that punitive damages are appropriate. For instance, if a cop detains you during a traffic stop for longer than necessary, but lets you go 10 minutes later, he might have technically violated the 4th Amendment, but a jury might also decide that the “harm” he did to you is only worth $20, or $1. In other words, not every case is worth filing. So if you believe you may have a claim against a law enforcement agent, let’s talk about it and decide if it makes sense to file a lawsuit.

Yes, there is no rule that says you can’t file a 1983 lawsuit while you’re being charged with a crime for the based on the same incident, but it is pretty rare to do so. I think there’s a few reasons for this.

Obviously, to sue the cops for violating your civil rights, they have to have actually violated your civil rights; when the investigation they performed led to enough evidence to charge you with a crime, it tends to suggest that they either got really lucky, or they had a good reason to arrest and search you in the first place. But there are exceptions. Just because you may have committed a crime doesn’t mean the police can use unreasonable force to arrest you, or mistreat you once you are arrested. Also, with DUIs, they are frequently charged in Court before the toxicology results come back proving your innocence (though the cases are usually dismissed as soon as a clean toxicology result comes in). 

Another reason it’s rare to file a civil rights lawsuit while you’re being charged with a crime is practical: Part of the process of dealing with your criminal case includes negotiating with the prosecutor for the best plea deal possible. Not all criminal cases result in plea deals, but most of them do. If you file a lawsuit against the cops involved in your case, it could make for a sticky situation when negotiating with the prosecutor.

The last reason it’s rare to file a civil rights lawsuit while you’re being charged with a crime is that, like any other case, your case might end up in front of a jury. I think juries are simply less likely to give someone they view as a “criminal” a monetary award, even if it is deserved. 

So, in sum, yes you can file a civil rights lawsuit while you’re being charged with a crime, and sometimes that would make sense, but in most cases I would advise my clients not to do so, at least not until the criminal case is resolved.