Police Misconduct

Police play an important role in the community by maintaining public order and safety and allowing a free society to thrive. To achieve these goals, the law gives police authority to deter, stop, and investigate crimes. Police who faithfully execute their duties help keep the community safe, gain the trust and confidence of their constituents, and prevent and solve crimes. But when police abuse their powers, they cause significant harm to individuals, society, and freedoms.

What Is Police Misconduct?

Police misconduct refers to illegal or inappropriate action taken by an officer. It can involve a violation of state law, federal law, or police department rules and regulations.

Examples of Police Misconduct

Reports of police misconduct have become common in the news. Most often when we hear about police misconduct, it's due to instances of excessive use of force, brutality, corruption, coercive interrogations, witness tampering, or racial profiling. These actions can result in physical harm or death, false imprisonment, and violation of constitutional rights.

But the range of actions that constitute misconduct is much broader, including filing false reports, fabricating evidence, unlawfully destroying property, and misusing or stealing seized property, money, or drugs. Misconduct can also include off-duty violence or unlawful acts.

In addition to individual harm, acts of police misconduct risk societal harm by threatening the administration of justice and eroding the trust between the police institution and citizens.

Deterring and Penalizing Police Misconduct

Potential remedies for police misconduct can take many forms: exclusion of illegally obtained evidence, criminal charges, civil lawsuits, disciplinary actions, policy reforms, and community action. A brief overview of these remedies follows.

The goals of these remedies are to deter police misconduct, impose accountability when misconduct happens, compensate and make victims whole, adopt policies to improve police training and supervision, and improve community-police relations.

Legal Remedies for Police Misconduct

Both civil and criminal remedies are available for police misconduct violations. The type of remedy depends on the circumstances involved.

The Exclusionary Rule

When police illegally obtain evidence in violation of the Fourth Amendment, a criminal defendant who believes his or her constitutional rights have been violated may ask the court to exclude the evidence. Called the exclusionary rule, this relief prevents the use of illegally obtained evidence against a defendant in criminal court.

The exclusionary rule provides an incentive for officers to act lawfully, so evidence can be used at trial to prove the person's guilt. The rule also encourages police departments to adequately train officers in constitutional rights. Critics of the exclusionary rule argue that the rule allows those guilty of a crime to go free.

Criminal Charges Against Police

Police officers, themselves, can be the subject of criminal charges.

Some states' laws impose criminal penalties for misconduct of a public officer or employee in their duties. This can include police officers who abuse their legal authority, violate the law, or unlawfully injure a person or violate their rights. Federal law also makes it a crime to willfully deprive a person of their constitutional rights. (18 U.S.C. § 242 (2023); Minn. Stat. § 609.43 (2023).)

Depending on the situation, prosecutors could also file charges against an officer for theft, bribery, fraud, tampering with evidence or a witness, assault, manslaughter, or even murder.

A conviction can result in incarceration and fines for the police officer, plus removal from the job and loss of the officer's police license.

Civil Lawsuits Against Police: Section 1983

Under federal law, a victim of police misconduct involving a violation of the person's civil rights can sue the offending officer and the department that employed the officer. Often referred to as a Section 1983 lawsuit (based on the statutory citation 42 U.S.C. § 1983), this civil action permits victims to seek money damages for their injuries. The law is meant to deter police misconduct and encourage departments to provide robust training for officers. A person might file a Section 1983 lawsuit in a case involving excessive use of force, unlawful arrest, or racial profiling, for example. (A person cannot seek compensation under Section 1983 for failure to provide a Miranda warning. (Vega v. Tekoh, 597 U.S. __ (2022).)

Not all victims recover damages, though. Victims face a sometimes insurmountable hurdle called "qualified immunity." Qualified immunity lets officers off the hook for civil liability unless the officer violated a "clearly established" right. The doctrine of qualified immunity is meant to protect officers from liability when they must make quick decisions that are reasonable but end up being flawed. But critics argue that it's nearly impossible for victims to meet the standard, and as a result, qualified immunity provides an absolute shield for officers' misconduct.

Some state laws provide a similar remedy to Section 1983 claims. And, in response to the frustrations with the federal law, a few states have eliminated or greatly limited the use of qualified immunity in such claims.

Civil Lawsuits Against Police Agencies: Structural Reform

In some municipalities, civil rights lawsuits have resulted in findings of patterns of misconduct by officers. Where a department exhibits a pattern of violating the civil rights of citizens through the misconduct of its officers, state or federal courts may order relief in the form of structural reforms to the department, including changes to department policies, practices, training requirements, data collection, and internal review systems.

Administrative Remedies for Police Misconduct

Administrative remedies for police misconduct can be imposed by a state agency (such as the Police Officers Standards and Training Board or POST board), the police department, the municipality, or a citizen review or oversight board.

License revocation. To work as a police officer, the state must certify or license the individual. With the power to certify also comes the power to revoke that certification. In cases of serious misconduct, a state agency or board can take away the person's license to work as a police officer.

Internal affairs. The department or municipality that employs the officer can also conduct its own investigation into the allegations of misconduct by an officer. Allegations could be raised by a citizen complaint or from within the department. An internal affairs unit within the department often conducts the investigation and may impose disciplinary actions if the allegation proves true.

Citizen review or oversight board. The public is often concerned that a police department cannot fairly and objectively investigate alleged misconduct by its own officers. One response to this concern has been the creation of citizen boards to take on the role of investigating and monitoring a police department whose officers have exhibited a pattern of misconduct. Among the goals of such citizen review boards are to strengthen department and officer public accountability, enhance transparency in operations, and ease tensions between the officers and the communities they serve.

Policy Reforms to Deter Police Misconduct

In some instances, reform takes place through changes prompted by policymakers and the community.

Policymaking Changes

Federal and state lawmakers, county commissioners, and city council members can enact changes to the law in an effort to deter police misconduct. Examples of police reform legislation include:

• removing legal obstacles that prevent victims from bringing or prevailing in lawsuits against officers for misconduct
• requiring training for police officers in de-escalation tactics, use-of-force policies, cultural sensitivity, and other techniques
• mandating body camera use by officers, and
• increasing, reallocating, or decreasing funding that goes to police departments.

Community Action

The voices of the community are another way to make change happen. Community action can take many forms—attending rallies, organizing or participating in a march, speaking at forums, testifying at public hearings, or establishing a global organized movement, such as Black Lives Matter.

Another way to speak out is by reporting police misconduct. A smartphone video that captured a white officer kneeling on a Black man's neck for almost eight minutes sparked protests around the world demanding an end to police misconduct against people of color and seeking justice for the murder of George Floyd. (It also provided evidence for four officers' criminal trials and convictions.)

Talk to a Lawyer

For victims of police misconduct, there are several options you can take. Consult a criminal defense attorney if you're a criminal defendant and believe the police illegally obtained the evidence against you. Speak with a civil rights attorney about filing a civil lawsuit if you believe your rights were violated by the police. File a complaint with the police department that employs the officer or with an independent review board, if available. Take action in your community. Or talk to your local, state, or federal representatives about changes needed in the law.