Police Officers –The Bad Apples
I have been honored to serve along side law enforcement officers for over forty years. I cannot think of a finer group of men and women.
However, in every profession there are bad apples. There is nothing worse for the reputation and credibility of law enforcement than “dirty” or “rogue” cops. “A bad apple spoils the barrel.” They need to be identified and removed.
As a rookie prosecutor, I was ordered to take the following case to jury trial, a case that I thought should have been dismissed in the interests of justice.
Family Afternoon 4th of July Party
A family was holding an afternoon July 4th party in their back yard. They had a live band and dozens of guests. Someone called the police to complain about disturbing the peace.
California law presumes that disturbing the peace take place between 10:00 pm and 7:00 am. For example, police cannot execute search warrants between 10:00 pm and 7:00 am, without judicial approval. Gardeners cannot crank up their leaf blowers before 7:00 am. Contractors must turn off their outdoor power tools before 10:00 pm.
Police Response to Disturbing the Peace Call
When a disturbing the peace call comes in usually one or two officers respond. They knock on the door and let the homeowner know that neighbors are complaining. The owner turns down their music, and the officers leave. The end.
In my case, several patrol cars responded. Upon exiting their cars, the four officers immediately put on protective leather gloves and took out their batons. They “knew” there would be a fight.
Officers Start to Beat the Homeowner
The officers pounded on the front door. Instead of explaining the complaint, the officers ordered the owner outside. When the owner stepped onto the front lawn, the cops surrounded him. The nervous owner lifted his hand to look at his wrist watch to check the time. He had nothing in his hands. One of the cops “thought the owner was reaching for a gun,” and clubbed the owner with his baton. The owner’s watch was shattered, and his wrist was broken.
The owner ran. The cops continued striking the owner from behind with their batons. The owner leaped over the gate into the backyard where the party was underway.
The Party Turns into a Riot
The police broke down the unlocked gate and chased after the owner. As the cops beat the owner, the partygoers started yelling and throwing beer and cups at the cops.
It turned into a full-blown riot. The cops called for backup, and emergency aid from the surrounding police departments. Dozens of officers responded, and order was finally restored.
The Homeowner is Hospitalized, the Partygoers Are Arrested, The Band Equipment is “Seized as Evidence” and Destroyed
Almost all of the party goers were arrested. The police seized all the band instruments and equipment “as evidence.” The expensive instruments and equipment were “somehow” destroyed while in the custody of the officers. The owner was taken to the hospital with several broken bones.
I was assigned to investigate the case. After my investigation I concluded that the case against the owner of the premises for “resisting the police” stunk. It should be dismissed in the interests of justice. Plus, to prosecute this case would be a waste of court resources and the jurors’ time.
I concluded that the police were not in the lawful performance of their duties. This is a necessary element of resisting the police. Also, the police used excessive force and the owner was justified in trying to protect himself.
I Was Ordered to Prosecute the Homeowner for “Resisting the Police”
Because of multiple civil law suits against the officers and police department, the police chief insisted that the homeowner be prosecuted. A “guilty” verdict could help the police avoid a multimillion dollar civil judgment. Therefore, my boss “ordered” me to take the case to trial despite my protests.
My Ethical Dilemma
This created an ethical dilemma. Dismissing the case was the right thing to do. Truth and justice demanded it. I was not sworn to protect rogue officers from the consequences of their unlawful conduct. I was sworn to uphold the law and the constitution, and the officers clearly violated the law and the constitutional rights of the home owner.
On the other hand, as a new deputy district attorney I served under the delegated powers of the elected District Attorney.
In short, I could either carry out my orders or quit. Since I had law school loans to pay off and a young family to support, quitting was not a viable option.
The Jury Trial
After pondering at length, I suddenly thought of a way to follow my orders and maintain my personal integrity. I would take the case to trial, but I would not prosecute it zealously. I would conduct the trial more like a search for the truth, and I would let the jury decide.
I called all four of the officers as witnesses. I basically asked, “tell the jury what happened.” The defense lawyer did not object to my questions “calling for a narrative.”
I did not object to the defense attorney on cross-examination. The defense called several witnesses. I only objected when I felt they were going beyond the facts and truth.
I was not going to play strategic “lawyer games.” The defense attorney also avoided playing games. Uniquely, we both wanted the jury to hear “the truth, the whole truth, and nothing but the truth.”
My Closing Argument
When I argued the case, I did not ask the jury to return a “guilty” verdict. I did not try to argue for conviction. Instead, I explained, “Ladies and Gentlemen, you have heard all the evidence and the law that applies to this case. I am confident that you will do the right thing and return the appropriate verdict.”
The jury quickly returned a verdict of “not guilty.” The jurors also wanted the police officers prosecuted. I explained that it was not up to me, and I advised them to send letters to the Orange County District Attorney or the U.S. Attorney.
Ultimately, justice was served. Truth prevailed. I maintained my personal integrity while carrying out the duties of my office.
P.S. The Murder of the Homeowner
After the “not guilty” verdict, the officers were enraged. Weeks later, the defendant’s body was found in a ditch by the side of the road, next to his motorcycle, in a secluded part of the city. He had been murdered. The case was never solved.
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