Host Sean Harris talks with Cincinnati attorney and OAJ member Al Gerhardstein about police misconduct cases, specifically violations of the fourth amendment.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. We’re very happy today to have Al Gerhardstein from Cincinnati with us today and his topic is police misconduct cases. Al Gerhardstein thanks very much for joining us here on Civilly Speaking.

Al: Thanks for doing this podcast and for doing this program generally, and I am happy to join you.

Sean: So when we’re talking about police misconduct cases, at the very outset how do you investigate something like this?

Al: Well, Ohio’s very fortunate to have a good of a public records law and you should never file a police misconduct case without using it. Every, all the police reports, the incident reports, the radio traffic, the body cams, the incident recalls, is what it’s called and the investigations, all that is public record and as long as there isn’t an open criminal case you can get everything and even if there is an open criminal case you can get the initial incidence report and the cruiser cam and the body cam. So you should be able to do a pretty good job of looking at what you got before you make a decision as to whether this is a use of force that is excessive or not.

Sean: And you mention body cams, I remember that being an issue recently, maybe going to the Supreme Court?

Al: Well, what we have recently is just a debate about whether all body cams are public records. It’s pretty clear that they are public records, but there can be some exceptions. Again, if it’s an open criminal case they can actually hold it and we just had a shooting in Cincinnati where the Hamilton Country prosecutor is holding the body cam until all the suspects are interviewed, but that should be released shortly after that and then there are privacy concerns so if the police are rushing in an exiting circumstance to a home and there are naked people in there that are innocent people, those types of figures and images can be blurred and redacted. Cincinnati has a team of about 6 people that do nothing but redact body cams.

Sean: Wow. And we have been using this term, police misconduct, what kind of conduct are we talking about?

Al: We’re talking about fourth amendment violations for the most part. That is excessive force, which the 4th amendment says that you should not be subjected to unreasonable searches and seizures and if the police use excessive force that’s unreasonable seizure and the fourth amendment case law is pretty clear on what constitutes an unreasonable amount of force and so we just apply the criteria. There’s 3 basic things we look for. We look at the seriousness of the crime, whether the suspect posed a threat to the officer or to members of the public, and whether the suspect was fleeing or otherwise resisting the directives of the officer. It gets a lot more complicated, but that’s the basic rule that we start with and that’s what the Supreme Court looks at as well. It’s an objective standard. What would a reasonable officer do in like or similar circumstances? We also look at false arrests, malicious prosecution, substantive due process violations where the police increased the risk of harm to people, privacy violations by the police where the seize people who are trying to film them, but you know three quarters of our cases involve the use of force.

Sean: And that’s interesting you mention the idea of people filming police. What does the law say about that?

Al: Totally legitimate thing to do. It is quite alright. If the police are in a public place, the suspect they are engaged with is in a public place, it is totally fine to film the police. Now, there can be some rare exception. I am thinking of a case for example where a suspect is on the brink of suicide. The police are literally trying to talk this suspect off a bridge and I am familiar with a case like this and the police ask the citizen who is across the street not to film them and one of the things the police said was you are making it harder for this person to decide to save his own life and that was literally true. The person was saying if I’m going to be on YouTube I mine as well jump. So I get it.

Sean: Oh my goodness.

Al: I mean there are situations where it’s appropriate for the police and the exercise of their duties to ask somebody to shut his camera off.

Sean: You know, staying on the issue of cameras and we were talking about body cams earlier, do you find that the footage from police body cams ends up being useful because I can imagine there would be police who would obstruct the view from time to time.

Al: For the most part we are getting good results from body cams. It doesn’t mean it solves the problem. We’ve had cruiser cams across the state for over ten years now and the cruiser cams of course are on a more stable setting and if the car is pointed in the right direction, the cruiser came is actually the best as far as the filming goes. The body cams often are jiggly and sometimes end up being pointed down to far because they sag on the officers uniform front so we’re still working through how to mount them in a way that gets you what you want to see and what we do get more footage from body cams cause usually officers work in pairs so we will get two or three versions of the same incident, but I’m involved in a shooting case right now in a city where we alleged that the body cam shows that the suspect was holding a bladed item at his side when the police shot him and the police are saying no that’s not the blade that’s just a shaft of light. So even though we are all looking at the same thing there’s still room for disagreement on what we’re seeing.

Sean: Al talked to us about the differences between these police misconduct cases versus other kind of more general civil claims.

Al: Well, I am talking to a group of excellent lawyers, OAJ lawyers know how to take their matter to court and get good verdicts so when it comes to damages, when it comes to working your client up as a witness, that much is the same, but the substantive law is quite a bit different. There isn’t just like a negligence standard. There is a lot of legal protection for police. First, the law itself is very police friendly so in order to just have a finding of a constitional violation of excessive force you have to really show that it’s much more than negligence, that it’s the type of conduct that no reasonable officer would engage in, but beyond that the officers have a unique defense called qualified immunity and that qualified immunity allows them to get a pass, even if it’s a constitutional violation. If the law wasn’t clearly establish as of the time of the shooting. I was just in the sixth circuit earlier this week and I was arguing a case involving an officer who walked up to a porch and it was clear that the citizen on the porch didn’t know that there was an officer out in the yard and he thought it was some neighbor who had been harassing him so he jumps up and he is sitting there with a gun in his hand because he’s a second amendment man with a concealed carry permit, but as he was taught he wants to get away from a confrontation. He runs to the front door, the officer still not identifying himself as an officer says stop. My client, the citizen turns around and he still has his gone in his hand so the officer shoots him. I’m in the sixth circuit arguing that the law was clearly established, that an officer needs to identify himself before he can use deadly force and the opposing council who is the winner in the court below, I got thrown out of court said hey there was a gun pointed at him, he gets to shoot. So even in something that obvious, we need to struggle in order to get justice for citizens because on something like that I thought it was just totally clear that an officer should always identify himself before he gets himself in a situation where he’s doing a gun fight with a citizen and my client had never even pulled the trigger.

Sean: How about attorney’s fee in these cases?

Al: Well that’s the one good thing, you can if you win under 42USC1988 you can get attorney’s fees and that’s not like most civil cases. So that’s good and that becomes a bargaining chip when we’re trying to get these cases resolved because sometimes these violations are incurred by people who may not be the most attractive to a jury. I mean I represent a lot of prisoners, I represent a lot of drug addicts, I represent people who get in trouble with the police and so my judgment, you know, for somebody who is injured you know may be suppressed a little bit because they aren’t going to like the client, but the attorney fee is going to be regular rate times the legitimate number of hours and that pressure helps get some of these cases settled that would otherwise not get settled.

Sean: Well you mentioned the sixth circuit earlier. Are all these cases filed in federal court?

Al: It depends on where you are in the state. In the northern district I know that we try to file in state court if we think the defendant won’t remove it, but most of the defendants are represented by a small group of defense council who know that they are going to be better off if they remove it to federal court and so I don’t like to waste the time to file it in state court then have it be removed. In Montgomery County the defendants will often leave it in state court and that’s a good state court and I like doing that. State courts generally aren’t interested in all that motion practice and you’re going to have a better shot at getting to trial and let me just emphasize that it’s the 1983 claim along with the a dependent state claim that can be filed both in state and federal court so you can file the federal civil rights claim in state court it’s just that most defense council will remove it and you’ll end up in federal court anyway. So we end up by virtue of either our filing because we want to get going or because the defendants remove it with most of the cases in federal court and the other thing I wanted to mention about qualified immunity is that this is a defense that can be asserted based on your pleadings and if they lose they can appeal to the sixth circuit then they can assert it again at the end of summary judgment and if they lose they can appeal it. So there’s two interlocutory appeals that you may be facing before you ever get to trial and that can be pretty long flog.

Sean: Wow. Obviously these are civil claims and there can be financial resolution but what else do you, what other relief, types of relief do you seek in these police misconduct cases?

Al: Well I like to say that our office pursues causes not cases because you wouldn’t stick with these things so long if it was just about money. Just about every mom and it’s usually a mom comes into our office and says you know I do want fair compensation but I just don’t want this to ever happen again to anybody else and we listen to both of those goals and we fight like mad to get just as much money as we can, but we also always seeks changes in the training of officers, changes in policies. We often do memorials or different types of plaques that will help the remaining officers stay vigilant and not fail to do their duty to protect citizens. Many times it’s like mentally ill citizens or others who are on the margins of power and we really try to make sure that we do something to deter future conduct and that’s a rewarding part of this. We settled a case in Boone County, across the river recently where the county sheriff agreed to redo the whole use of force policy, he agreed to issue body cams to all the deputies, he agreed to institute a policy where officers had to be vigilant and report all drugs that they take that might affect their capacity and the mom knowing that those types of reforms were achieved through the mediation that should could never get had we tried it, that was very comforting to her.

Sean: So you are telling me the law is both a business and a profession?

Al: I like to think so and you know I hope we never forget that and I know that there are many people in OAJ who get involved in industry groups and fight for product changes and other things and related to that I am going to remind you, that if we haven’t talked about this before, our retainer agreement actually says that we strongly discourage the client from entering into any confidentially agreement and we really press the client as hard as we can to not succumb to that pressure and I know they won’t always go along, but most of the time our agreements are public. Now most of our defendants are public agencies so we have the public records law in our favor, but there’s a lot of private vendors doing medical care in jails and other private defendants that we resist this with because if all this work and all this exposure of abuse and bad training and wrongful conduct gets swept under the rug just with the payment of a couple dollars we’re not doing our job and we fight very hard to make sure that the public learns what we’ve learned.

Sean: And when you say you fight hard tell us how you approach that, you know in whether it’s an injury settlement or police misconduct case or whatever. Lots of times they of course spring the confidentiality clause on us at the last minute. How do you handle that?

Al: And well we anticipate it.  I mean we put in our demand letters that we aren’t going to agree to confidentiality. We warn the mediator that we are not going to agree to confidentiality. Like I say, our clients have already signed a retainer agreement saying that they aren’t going to agree to confidentiality and we don’t leave it as a mystery as to what we intend to do. You can go on our website and you’ll see the type of notices we’ve issued and the best notices are joint. We’ve done some great stuff with defendants. Where I get to get up and I say I want to congratulate the county of such and such cause they have instituted this new policy where they’ve done CIT training for all their officers and their working in soup kitchens you know for forty hours a quarter so that they get to meet the clients when they aren’t arresting them and whatever the reform is and I’m giving them a pat on the back and the mom is standing there saying yes I am really grateful that they’ve listen to us and so there’s a way  to do this were the defendants can feel proud of what you’ve accomplished and the money gets buried in the story and that’s fine. That’s all good. I want them to feel proud, I want them to own the reform and that’s what we try to do.

Sean:  A true win win .

Al: Yes.

Al: You know we’ve talked about police misconduct cases and I will say that those are a bread and butter type area for those of us who do civil rights work, but anytime an OAJ member gets a case where the government has screwed somebody, where you think and just do a gut check, forget con law and I am not saying that you have to be an expert in all these different areas, but if you think the government has abused the right of your client then there may be using section 1983 and all the provisions of the constitution a way to secure rights for the person who has been violated. So I just want to keep people’s minds open and even though there are plenty of defenses for government agents we still can find ways to get people to be held liable and I think today more than ever it’s important to use the courts to hold the executive branch in check because we seem to be in a time when were all under assault by those who think that there are no limits on what government power can do. So there are some and we have that tool.

Sean: Al, I want to ask you about a case that you worked on in the last couple of years called Obergefell, which we know as the Supreme Court marriage equality case that you were involved in and I gather that case in a different form is ongoing what, is there a book is there a movie, what’s happening?

Al: Well, it’s been a lot of fun and I can’t say that about many of my cases because most of them are wrongful death cases and this one was a, although my client died and the case involved a death certificate, in the end as you say it was about marriage equality and that was very thrilling to end the case with a gay pride parade and have all the celebration across the country when the Supreme Court announced the decision in Obergefell and about six months after that a book came out called Love Wins, which tracks some of my cases and the work we did in this firm on Obergefell as well as the relationship between Jim Obergefell and his deceased spouse, Jon Arthur and so that book then got picked up by 20th Century Fox and the screen play is being written as we speak and I guess one of these days there’s going to be a movie and the whole thing is a lot of fun and it’s just a very different experience from the usual litigators story about what happens when you do a case.

Sean: And am I correct that the part of Al Gerhardstein will be played by Robert Redford?

Al: Who knows and I will tell you that I did have to sign a contract that involved my life rights, which is a literally what they called…

Sean: Oh my.

Al: I had to retain a Hollywood lawyer who charged like 975 dollars an hour to read a boiler plate contract who he basically ended up telling me that I couldn’t change a word of it and I said just you know, just don’t put me in bed with somebody or give me some kind of scandal you know in this movie and he said don’t worry about it they’ll never do that so I have no control over what’s happening. I have no idea of who plays who. I have no idea how it’s all going to turn out, but I can tell you that it’s been a lot of fun.

Sean: Well Al Gerhardstein it’s been an absolute pleasure, thanks for joining us here on Civilly Speaking.

Al: Thanks for doing this. Take care.