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How will a police-misconduct civil case I file impact my criminal case? And the other way around?

Typically, we do not want to bring the civil claims regarding police misconduct or brutality until the criminal case is resolved.

The primary reason for that is there is a U.S. Supreme Court case called Heck v. Humphrey that holds that if the resolution of the criminal case will necessarily decide the issue of whether force was excessive, then you can’t even pursue that civil case. If you want to bring a claim for excessive force against a police officer and you are charged with a crime of violence, the crime of violence with which you are charged could preclude the use of force you claim is excessive from being found by a court to be excessive. If you wind up pleading guilty or no contest to that criminal charge, or are convicted of it by a jury, your civil claim is automatically going to be extinguished.

What we will often recommend to our clients, as long as there is time before the statute of limitations runs out, is to work with their criminal-defense attorney to resolve whatever it is that they are being charged with and then worry about a civil claim. In the meantime, we can try to quietly investigate what happened. We do not want to draw too much attention to the fact that there may be a civil claim coming. Because unscrupulous prosecutors will sometimes double down, or insist on a release of civil liability before they will drop charges.

There is a legal-ethics opinion from the Supreme Court of Ohio’s Board of Professional Conduct that advises that it’s unethical for a prosecutor to demand a release of civil liability from someone they are prosecuting, if there is no probable cause to support the charges to begin with. If there is no probable cause, then the prosecutor should not be expecting the person that they are prosecuting to sign a release of civil liability before dropping charges or cutting a plea deal. (Unfortunately, we see prosecutors violate this all the time.)

If you still have a criminal case against you, you should share that ethics opinion with your criminal-defense attorney and urge him or her to raise this ethical issue with any prosecutor who is demanding a release of civil claims in exchange for dropping the case.

In our view, any demand of a release of civil liabilty by a prosecutor is completely unethical, because it uses the coercive arm of the state unfairly, improperly, and where it doesn't belong, in the criminal-justice realm, for the private gain of third parties like police. But it happens all the time and the U.S. Supreme Court thus far seems to tolerate this immoral practice.

For more information on Impact of Police Misconduct Civil Case on a Criminal Case, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.


Related Practice Areas
First AmendmentPolice misconduct & brutalityMalicious prosecution, abuse of process, and false arrest

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