In Oakland, Fighting Police Abuse Alone Is An Uphill Battle

Rene C. Davidson Courthouse photo by Wally Gobetz/Flickr. Illustration by Oakland Police Beat.

In the last 20 years, few Oakland Police Department officers have been charged with criminal misconduct, even when unarmed citizens are shot and killed.

“Criminal charges in Oakland is a misnomer,” said John Burris, an Oakland attorney known for high-profile police accountability cases. “The [Alameda County District Attorney] is never going to prosecute. The system is designed to protect the police.”

That leaves alleged victims in search of justice or compensation few options: find a lawyer or represent themselves.

In a review of civil rights-related lawsuits filed against the OPD going back to 1990, Oakland Police Beat found approximately 30 cases filed by individuals without an attorney (called Pro Se or In Pro Per plaintiffs). In about half the cases reviewed, the plaintiffs won -– an unusual outcome for citizens representing themselves. But most of those wins occurred in the 1990s. Within the last decade the success rate has dropped significantly. According to attorneys interviewed for this story, it has become increasingly difficult for individuals to represent themselves.

The allegations made in Pro Se lawsuits are no different than the hundreds of cases filed against the OPD by lawyers: excessive use of force, false arrest, resisting arrest, trumped up charges, witness intimidation and coercion.

A review of the most recent cases filed against OPD by Pro Se plaintiffs — most of whom we were unable to contact — illustrate the difficulties of filing one’s own case.

In several cases, the judge allowed plaintiffs to rewrite the initial court filing that lays out the accusations, also called a complaint. The OPD’s attorneys had tried to obtain a dismissal because of problems with the plaintiffs’ first filing. But for unknown reasons, the plaintiffs in those cases never filed the amended complaint and the lawsuits were thrown out.

A case contesting rape charges that both the alleged rapist and the alleged victim said were falsified by the police continued for two years with a judge eventually dismissing the case. The plaintiffs tried to file an appeal but that was dismissed as well when they failed to come up with the $455 filing fee.

Two recent cases were filed from jail. In one, an 11-page complaint written in neat printing by an inmate at Santa Rita shows a surprising level of legal literacy for a non-lawyer. The plaintiff alleges excessive force was used to subdue him when he was taken into custody for an involuntary psychiatric evaluation. The medical personnel named in the suit have been dismissed but the case against OPD remains open. The case is currently on hold while the plaintiff, who says he has mental and physical disabilities, is in a state mental health facility.

In another recent case, the plaintiff begs the court to reopen his claim that OPD officers framed him for murder using a false confession. His case was dismissed in 2010. In a letter written from prison and sent to the court in March of this year, the plaintiff begs the judge to reopen his case. His letter ends, “I am being threatened with the refiling of a case for which I am being framed, so I have to continue the fight.”

“It’s just very hard to win a civil rights case,” said Oakland civil rights attorney Michael J. Haddad, of Haddad & Sherwin. He pointed out that the police get extra deference from the court and that the Oakland City Attorney tends to “defend those cases pretty vigorously right to the end.”

Pro Se plaintiffs face another barrier as well: “Cops lie. Every case I’ve been involved in, they just lie,” said Burris. Walter Riley, another Oakland attorney who specializes in police misconduct cases, agreed: “Police officers individually will lie and departments will cover up.”

Where to Begin

 

Before filing a lawsuit — or even if someone doesn’t have the resources to build a court case — “everybody should file a report, file a complaint with Internal Affairs,” said Riley. Every complaint against an officer builds a record that could lead to corrective action taken if that officer is ever taken to court.

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Representing Yourself in Federal Court – A Handbook for Pro Se Litigants
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This handbook was developed in 2011 as a collaborative effort between members of the private bar, law student interns assisting the court, and judges and staff attorneys of the United States District Court for the Northern District of California.

Haddad agreed: “State law requires all police agencies to record and investigate all citizen complaints. At least it will create a record in that officer’s file for the next five years. So if someone else brings a case against that officer later, they can find out about this prior incident.”

“I like to know the history of every police officer when I’m involved in a case,” said Riley. “We are building a record.”

Building a Case

 

It is telling that the only Pro Se plaintiff we were able to contact is a lawyer who represented himself. Many of the people victimized by the police have few resources; some plaintiffs were suing from prison.

Attorney Wayne Johnson, who sued the police on his own behalf in 2000, was also the only attorney interviewed for this article who encouraged citizens take on the police on their own. This might be because Johnson has written a reference book for Pro Se plaintiffs, Suing the Police in Federal Court.

Even Johnson sees finding an attorney as the first option to try. “Depending on how egregious the situation is, how much money you lost, how long you were locked up, they may decide to take the case.”

“If someone is a victim of police abuse, they need to start preserving their evidence right away,” said Haddad. “That includes taking many photos of injuries right away and over time and writing down the names and contact information for all witnesses.”

He suggested that victims check the scene for any private video cameras that might have filmed the event and contact the owners of those cameras right away, since security video is usually recorded over within a couple of days.

Haddad also recommended getting medical attention to document any injuries.

For those who decide to go it on their own, Riley suggested using the Alameda County Law Library and the resources of the court. “An individual can go to any court clerk’s office and get copies of other complaints that have been filed,” Riley said, noting that attorneys often use each other’s complaints as starting points for their own court papers.

Another option is PACER, the online service for accessing federal court documents. It’s free to sign up, but charges $.10 for each page of a record you download. PACER waives the charges if a user accrues less than $15 every three months.

Once in court, federal judges are required to give Pro Se plaintiffs extra help. A judge may also seek out an attorney to represent a plaintiff pro bono if it looks like the case has merit. Haddad has represented at least one of these, coming in to negotiate a settlement.

Plaintiffs can’t count on this, though. “I’ve heard from a lot of federal judges that have a hard time finding someone to step in and represent a Pro Se litigant,” said Haddad.

The Activist Model

 

“A civil rights lawsuit is not the remedy for every rights violation,” Haddad noted. “An Internal Affairs complaint is very unlikely to result in a finding of misconduct. Currently, there is no neutral independent forum to investigate and penalize police misconduct [in Oakland].”

Activists offer another option: strength in numbers.

In 2012 OPD officer Miguel Masso shot and killed teenager Alan Blueford. The shooting sparked a huge response from the community, and eventually led to the creation of the Justice 4 Alan Blueford (JAB) Coalition.

Forrest Schmidt, an organizer with JAB and the ANSWER Coalition (a national alliance of anti-war and civil rights groups) advises the victims of police abuse not to blame themselves.

“As long as people stay silent and do not take action, it’s continuing that climate where the police can get away with doing what they’re doing,” he said. Schmidt noted that more people are speaking out, often aided by new tools such as social media and cell phone videos.

“Know your rights. You have a right to observe an arrest,” he advised. “Shine a much brighter spotlight.”

“JAB is not only here to help Alan,” said Adam Blueford, Alan’s father. A new organization, the Alan Blueford Foundation, has grown out of JAB.

Jeralynn Blueford, Alan’s mother, said that it “will help to heal the community and change the stop and frisk law. We as a community must change so that we can grow.”

Mollie Costello, a JAB organizer, said that the foundation is another resource for victims of police abuse: “We want to make a mechanism for people to be able to tap in the resource of what do you do when the police violate your rights.”