State and Local Remedies

The Commission is primarily concerned with the Federal remedies forviolence discussed in the two preceding chapters. But these remediesare neither the most important nor the most effective measures for dealing with police brutality and "private" violence. The prime responsibility to punish and prevent such abuses rests with State and localgovernments. This chapter is a brief review of the remedies availableto these governments.

LEGAL REMEDIES

The States, like the Federal Government, have criminal and civil remedies for unlawful violence. They may be used to punish and deterpolice brutality or police connivance in private violence. Civil suitsoffer the additional possibility that the victims of violence (or theirheirs) will be compensated for their injuries. Each approach has itsown advantages and disadvantages, largely parallel to those of thecomparable Federal remedies.1 State actions, however, have an inherent advantage. While suits under the Federal Civil Rights Actsrequire proof that the unlawful violence was intended to invade Federalconstitutional rights, in the usual State court suit it is necessary to proveonly that the policeman was liable for the violence according to moreeasily satisfied common law rules of criminal or civil liability.

Prosecutors and criminal actions

When a policeman uses unnecessary force or connives in private violence, he is subject to the same criminal penalties as an ordinary citizen2014ranging from jail or fines for simple assault and battery up to the deathpenalty for first-degree murder.2 Of all available remedies for policemisconduct, State criminal actions may have the most powerful deterrent effect. The penalties may be heavy (unlike those of the Federal

statute, which are limited to a year's imprisonment or a $1,000 fine), 8

and they do not, like damages in a civil suit, 4 depend on the financial

condition of the officer. The expense of investigating and prosecutingfalls on the State, not on the private victims (or their heirs) as withcivil suits. State prosecutions of police misconduct, moreover, usuallyare not hindered by the necessity for showing the "specific intent,"which the principal criminal Federal Civil Rights Act 8 requires forconviction. Nor does a local prosecutor who brings charges against apoliceman run the risk of jury resentment of Federal interference with"States' rights." 6

Criminal prosecutions under State law would thus appear to be a

potentially powerful weapon for dealing with police brutality and policeconnected violence, but they are seldom utilized. 7 One reason for thismay be that the machinery of criminal prosecution is not self-starting.As was pointed out in an earlier chapter, 8 the person charged with theduty of investigating alleged police brutality may well be the very personalleged to have committed it. This situation is difficult even where someother officer has authority to investigate the charges, for here one officermust perform an investigation which could result in a prison sentencefor his fellow officer. Similar difficulties arise out of the relationshipbetween policemen and prosecutors. Prosecutors' offices are theoretically separate from police departments, but, in reality, each needs thefull cooperation of the other and they usually work closely together. 0

The attorney general of a State, being less dependent on local policemen than a local prosecutor, is in a position to discourage police brutalitythrough a variety of methods. For example, he might convince localprosecutors to utilize criminal sanctions against erring policemen despitetheir close relationship or, failing that, might himself institute criminalaction. He might in addition, support other programs2014such as newlaws or stricter departmental discipline2014designed to inhibit all formsof police illegality including brutality. The Commission is not awareof many concerted programs of this nature. It is significant, however,that the attorneys general of at least six States (California, Massachusetts, New York, Pennsylvania, Oregon, and Wisconsin) have set upseparate sections in their offices to deal with civil rights and civil liberties problems. 10

Civil suits by private citizens

Unlawful violence is not only a criminal act, but also a tort, or civilwrong, for which the victim may sue for damages. In State courtsprivate lawsuits against police officers for assault and battery or forwrongful death u are apparently more frequent than criminal prosecutions; 12 although comparatively few cases of either type are brought before the courts. The major advantages of civil suits are that the injured

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person himself may initiate the action; that it may result in direct compensation to the injured person; and that the plaintiff must prove his caseonly by a preponderance of the evidence, rather than beyond a reasonable doubt as is required in criminal prosecutions.

Damage suits in State courts, however, also have disadvantages, similar to those of civil suits under the Federal Civil Rights Act. 18 The

initiative and the financial burden of what may be protracted litigationlie on private persons who are likely to be poor. In such suits, as in alljudicial proceedings regarding police brutality whether State or Federal,criminal or civil, there is the problem of persuading a jury to decide infavor of victims who may lack credibility in the eyes...