Police baton use before identifying himself...

(I know your probably thinking "he got hit by a Police baton? He must have deserved it". Read below and you will understand. Ill try to keep this short while retaining all of the necessary details)

Me, my wife, my cousin and his girlfriend, had gone to a local beach to watch a meteorite shower last November. The shower wasn't until 2am, we arrived at the beach at about 10pm. We decided to walk the strand at the beach. We had about 2 drinks each at which point we entered a bar to order another. My wife tried to order a drink from the bartender twice only to have him ignore her. She was complaining about the service to me when he overheard her and told her if she wasn't happy to go somewhere else, then calling her a "fu**ing bi*ch", I stood up and told him to watch his mouth, he then told me to leave the bar and he began to walk outside to get the bouncer.

I immediately followed him outside (about 5-6 seconds behind him) when I exited the bar the bouncer grabbed me by the back of the shirt and pushed me down. I stood up ready to defend myself, by that time my cousin had come out and grabbed me and told me to calm down. The bouncer continued to run his mouth at me and I did the same. My cousin was calming me down when 3 other guys came out of the bar (friends of the bartender and bouncer) and started running their mouths and I started yelling back at them. The bouncer then proceeded to call a police officer personally on his cell phone. At about that same time the 3 guys came at me and started punching me. All that my cousin could do was try to pick them off of me.

Next thing I know, as I am getting punched (not punching back by the way, merely protecting my head), I get hit very hard by an object in the back (I thought somebody had grabbed a bat or a bottle), then hit in the back of the head by the object which dazed me and I fell to my knees and then to my back. I looked up and saw that it was a police officer, he then hit me once more on the back of the leg with the baton, rolled me over, put his foot on my back and cuffed me.

The officer flat out lied in his statement and said that he saw me "open hand slap a by standing female" and that is the reason the men attacked me and that he used his baton due to me resisting arrest. (The Officer didn’t even arrive until after the guys jumped me).

Mind you, none of us were intoxicated, I have never been arrested in my life and I am a very calm individual who was only sticking up for my wife.

I was formally charged with assault for spitting on the bouncer, which once again never happened. I am upset that the Police Officer never identified himself before he hit me. I didn’t resist arrest at all due to not even knowing there was an Officer present and once I was aware the Police had arrived I was very cooperative. I am a very Police and authority friendly individual (my father is an active Coast Guard Aux member). I thought the Officer would have arrived to protect me but instead joined in the beating of me and falsified his statement.

I am considering suing the bar, the Officer and Police Department. Turns out the Police Officer and the bouncer are friends (the bouncer is in training to be an EMT). I was looking for advice on this board as to whether I have a case and if not, how can this be legal. I lost a lot of trust in the Justice System that day.

I appreciate any reply. Thank you!

P.S. I have pictures of the very bad bruises left by the Officer's baton if anybody wants me to post them.

-Clint

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.

Well first of all I’d like to say thank you for your reply. I enjoy the way you reply to people and cut out the nonsense and give it straight, no sugar coating, which is kind of the way it should be. After all, it’s not your job to fluff your replies or even reply in the first place, I really do appreciate your time, experience and advice.

To clear a few things up, the uniform and flashing lights didn't "tip me off" to the Officers presence, he came on foot and joined four other males in hitting me but instead of hitting me with fists like the other men were, he hit me with his baton. He never once said, "Stop, Police" or any thing of the sort. I was hoping for an Officer at that moment to come help me, in which he came but it certainly wasn't to help me. I didn't see him until after he hit me, certainly not following the Use of Force Continuum that is recommended.

Also, complaining about service in a bar is not against the law, it's also not a usual pre-cursor to a fight, many people do it all around the world, everyday. Once the bartender said his words, I simply told him to watch his mouth (not against the law) at which point he told me I was kicked out. I didn't sit in the bar and make a scene, I got up immediately and left. I was assaulted by the bouncer right as I walked out the door, so I’m not sure how you get the idea that I wasn't making matters any better for myself. I was leaving. The bouncer grabbed me and pushed me down just outside the door of the establishment.

You said that there surely were other witnesses, which is correct BUT the Officer only took a statement from the bouncer, he didn’t retain any names, phone numbers, statements, etc. from anybody else at the scene. I can't very well go around and get names of people as I am in handcuffs in a Police car. He never took a statement from my friend that he supposedly saw me "open hand slap". So I wish I could call on witnesses but I have not the slightest idea on how to find them. The only witnesses I have are the people in my own party, who I am sure, will be considered slightly biased by any Judge or Jury.

As for my record being cleared, I have to pay $650 for the deferred adjudication and another $1500 to expunge the arrest charge. To me, being somebody who left a bar at my own will and was assaulted after I was outside, I feel like that’s unfair. That’s not justice.
Most likely I will take the deal, although I would enjoy a pretrial diversion much more.

I really do appreciate your reply GentleGrace, it means a lot, it's been tough to get straight answers from anyone. I hope this reply gives a little more detail to the situation for you. I wasn't looking for trouble that night and I wasn’t trying to be a hero or anything of the sort, I stood up for my Wife verbally and was then ready to get on my way.

-Clint

You do realize , don't you, that mouthing off outside of a bar doesn't translate into "ready to get on my way", right? ( A point the City attorney and attorney for the cop will most certainly make).

I think this situation is going to boil down to he said/he said--meaning, of course, that the "he" that is you unfortunately doesn't carry as much import as the "he" that is the COP. And, to be honest regarding that topic, I have met as many dishonest cops as I have honorable ones. And, it certainly isn't beyond belief that the one that was there that night acted inappropriately. I am confused though as to if the officer was on duty--was he on duty, and in uniform? That is relevant because it relates to if he was acting in color of the law.


As far as the whole event and how it unfolded---I have never drank or been inside a bar---I don't say that to denote some sense of superiority---I say that only to say I have no way to speculate what could have or should have been different--since I don't know and have no personal experience to rely on. Perhaps you and your wife being disgruntled was just the proverbial 'straw' that broke the camels back. I do think, though, that the fact that you bear some culpability ( mouthing back, instead of merely leaving ) could sway a jury. Also, when you told the bartender to 'watch your mouth', could you have reasonably predicited that would escalate the situation? No, it isn't against the law, but was it reasonable to assume and predict those words would aggravate an already tense situation? I believe so.

But then again---what do I know? OJ Simspon is a free man.

If you think you have a case, you need to contact an attorney experienced in Section 1983----not a personal injury attorney. Be sure to tell him the police officer never identified himself, etc, as you stated in your second posting. I would seek relief immediately if you intend to do so because the more time that goes by, the harder it is to prove your case. But, realize, you will have to do exactly that--prove it. Word against word is dead in the water. Keep in mind, too, that although the "other side" may have only interviewed witnesses favorable to their actions, you are free to do the same, should you be able to find others there who recall the events of that night. That is why time is of the essence. Do you think the testimony of your friends and family is any more bias than that of the cop, the bouncers friend on speed dial? It looks like a level playing field to me in terms of witness credibility. Your attorney can also consider other things such as previous such incidents with this bar/officer/bouncer, etc and investigate more thoroughly the events of that night.

But be advised what you are attempting is a long uphill battle for --well, in my opinion, very little pay off. But, the "is it worth it" determination is only one that you alone can make.

I have enjoyed this exchange.

Be well.

Thank you again GentleGrace, I really appreciate everything. The advice as to what experience you recommend in an attorney helps tremendously. I know that you have no responsibility to reply on this site yet you are usually the first and only person to respond to people.

Thank you for your time and advice.

-My Best,
-Clint

I am interested as to how this unfolds. If you think of it, do let me know, please? If you don't wish to post it here, you can reach me via the message center on this site.

Victoria

I certainly will do. Once again, thank you.

-Clint

I feel I could have offered some worth while advise if I had found this post earlier. No matter what stage you are out now I still feel I can offer assistance.

Before I continue I would like to take you up on the offer to see all the pictures available that were caused by the Batons use. From that point I will offer my services even if the case is settled. It is a shame but things like this stay with you for a very long time.

Your not alone.

What services exactly is it that you might offer that would allow you to advertise here, clearly against the terms of service? Surely it didn't escape your notice that solicitation is against the terms of usage of this site?