View Single Post
  #3 (permalink)  
Old 03-07-2008, 07:06 PM
GentleGrace GentleGrace is offline
Senior Member
 
Join Date: Nov 2006
Posts: 1,411
Send a message via AIM to GentleGrace
Default

Quote:
Originally Posted by leisuredrummer View Post
Anyone? They are offering me a deal but I don't really want to take it, simply because I know I am innocent. They have offered me deferred adjudication if I plead no contest and I would be able to expunge the charge from my record later on.

I still am not sure if I have a civil case or not? Also, if I were to accept the deal would I be able to try a civil case later? Anyone on this site have any help? Gentlegrace?

-Thanks,
-Clint
This entire issue is so complicated, so it is difficult to be thorough while still being brief.

First of all, the United States Constitution gives states police power which is, as the name states, the authority to enforce criminal statutes (Jacobson v Massachusetts, 197 US 11 (1905). This is important because the question you are asking about involves law enforcement officers, not another private citizen who just happened to be at the bar that night. This means that the underlying principle of all of this is that the police had and do have a right to uphold the law. That being said, what law do you think they were trying to uphold during the exchange you outlined? I can think of a few right off the top of my head--can you? If you can, perhaps that will help you see your situation in a different light.

Another phrase with which you need to become familiar---sine qua non, which means, "Without this, that would not be". This test is relational in nature and is used in determining factual causality. In other words, "if not, but for"---if not for such and such, then this would not have been the result.

I don't know who is innocent or who is at fault but I can tell you to expect the opposing side to establish that if not for YOUR actions that night, the result you are decrying would not have happened. Example: Lets just say, for instance, when your wife began griping about the establishment, you clearly had other alternatives. One, you could have simply left. Problem avoided. Two, you would have asked quietly to speak with a manager. In other words, what was the first event that occured and at whose feet does the responsibility fall? Also, you admit you kept mouthing off at the bouncer who you say was mouthing off to you. There is precisely where YOU became responsible for your own actions. "Sticking up for my wife" --oh please. Spare me the male bravado. This isn't third grade recess--it is a bar. People are rude all the time---the bouncer being rude is hardly grounds for a fight. You also say you went to the bar to have a 'third' drink--I don't drink, so I don't know, but I suspect it was also safe to assume some of the 'mouthing' was encouraged by alcohol. The point is , you had many opportunities to simply walk away and not only did you not walk away, you admit you perpetuated the situation by mouthing off. Note--the fact that someone ELSE was mouthing off is immaterial. The "well, HE did it first" defense didn't work too well in first grade and it doesn't work too well here, either. The law expects someone to be an adult and avail themselves of the opportunity to display a modicum of maturity and simply leave and select another place more to your liking. Had you done that ( you clearly had the choice to do so), you would have avoided the entire scenerio with the police. As I said... IF NOT, BUT FOR. Causation looks to see whether some injury would not have occured IF NOT BUT FOR the conduct of the accused. Understand?

That being said, there is always the issue of necessary attendant circumstances----in other words, the facts surrounding an event. Was it necessary for you to act as you did? Did you have other options? Did you avail yourself of them? Clearly not.

*big breath*

NOW... enter another dynamic--the police. Section 1983 governs the civil liability of police officers who are acting 'under color of the law', meaning, simply, in the scope of their duties (as opposed to acting as your neighbor, out cutting the grass, and he beans you over the head--the fact he is an officer is irrelevant in that situation--understand?) Color of the law gives officers certain latitude that depends on the circumstances. Example: A man grabs another and hurls him to the ground with bone crushing force. That, given the right circumstances could be grounds for assault---OR, it could result in a crowded stadium cheering wildly. Attendant circumstances.

The law provides statutory protections to police officers who use force to affect an arrest or subdue a subject or keep them from fleeing arrest. This protection includes an "execution of public duty" defense which provides police officers necessary protection or else they could not function. Section 3.07 of the Model Penal Code provides details about the use of force in law enforcement if you wish to look it up.

That being said, there are times that an officer acts with undue force, or outside the scope of his duties. If you feel he did, then you are free to seek relief under the law, but be advised that in my opinion, since you asked for it, the attendant circumstances do not shed a favorable light on you and your conduct that evening. The police officers who arrived on the scene did so for one reason ---to uphold the law and bring an immediate cessation to conflict. The police officer never identified himself?? What did you expect, a formal introduction? The uniform and the car with the flashing lights didn't tip ya off a bit??

I don't know if the police officer used undue force----but if the officer "flat out lied" about you hitting someone, the next question is--you admit there were witnesses. What do they say? Not everyone in the bar that night had a proverbial horse in this race---meaning, simply, that there are patrons who were not involved who could testify. I assume their testimony would corroborate the officers, since it would be stupid to lie with countless witnesses around ( you admit many people "three guys" were hitting you, etc).

There is also the principle of assumed risk. You want to sue everyone in site--but if you backtrack to the first event, and then the second----you realize all of this COULD have been avoided if not for one thing--PRIDE. Your wife, obviously, complaining loudly with the intent for the bartender to hear and serve her, started in motion a chain of events for which you decry any responsibility.

Now--you are offered a deal which would allow you to have a clear record--how can you expect more than that?? Until you recognize your culpability and your failure to exercise other options that could have resulted in avoiding the whole scenario, you will not be content. Again, pride. If it goes off your record---you are given a clean slate--something a lot of people don't have. What else do you want besides retaliation for your hurt feelings? Bottom line: the Supreme Court test is reasonableness. Did the officers act in a reasonable fashion given the surrounding ( attendant ) circumstances? I suspect a court would rule that they did. It wasn't a sing along at a retirement center--it was a BAR parking lot and all that entails.

Regarding your question about the success of a civil suit---note OJ SIMPSON. He was acquitted of murder, BUT, he was found civilly liable. The standard of proof in a criminal trial is "beyond a reasonable doubt" 99%, whereas a civil trial it is "preponderance of the evidence" 51%. So, taking a plea deal shouldn't necessarily preclude any civil action later. But, in my never-to-be-humble opinion, all of this is pride driven. And, you've been given a chance to get on with your life with a clean slate.

I would avail myself of it post haste.

Consider what you have to gain by continuing in this vein in light of what you stand to lose by doing the same.

Last edited by GentleGrace : 03-08-2008 at 08:24 PM.
Find a Lawyer Now!