A police arresting a man in New York State.During much of 2020, the United States has been rocked with protests over numerous incidents of police misconduct, including fatal shootings and other forms of excessive force. Unfortunately, Albany and the rest of the Capital Region have not been spared. Those who have been victimized by police misconduct (or their survivors in cases where the victim was killed) do have access to certain legal remedies, however, and we know how to use them effectively.

High Profile Incidents of Police Misconduct in the Capital Region

Police officers in Albany and elsewhere in the Capital Region have been accused of inappropriate use of force on many occasions. The following are brief descriptions of three recent high-profile incidents that provoked controversy.

February 2016: Brody Shea Case:

The city of Schenectady settled with Union College student Brody Shea for $440,000. Although the city did not admit liability, Shea claims that the Schenectady Police tackled him and slammed his face into the pavement while he was celebrating a Union College hockey victory in April 2014. Photographs graphically illustrate the extent of Mr. Shea’s injuries.

Mr. Shea claims that he was not committing a crime and that he posed no threat at the time the police assaulted him. The police filed charges against Mr. Shea over the incident, but the prosecutor dismissed them before the settlement.

March 2019: The First Street Incident: Our clients were Mario Gorostiza and Armando Sanchez

In March 2019, a video taken by a police body camera showed Albany police officers, called in because of a loud party, beating three black men. In response, a confrontation took place between the officers and several residents of First Street. Albany police initially charged the men with resisting arrest, but the Albany D.A. later reversed course by dropping all charges against the men and charging one of the police officers with felony assault and official misconduct.

The officer, as well as two other police officers, were suspended with pay pending an investigation into the matter. The criminal charges that were filed against one of the officers have yet to be resolved.

A video showed police repeatedly striking Sanchez, Gorostiza and Lee Childs. An internal Albany Police Department report concluded that its officers had been guilty of misconduct. Over the summer, the city of Albany reached settlements of $100,000 and $65,000 with Sanchez and Gorostiza, respectively.

August 2018: Shooting of Unarmed Black Man by Albany Police Detective James Olsen

On August 20, 2018, an Albany grocery store owner called the police on Ellazar Williams, a store customer, after an argument followed by a minor disturbance. When police arrived, they drew their guns and ordered Mr. Williams to stop. Williams fled, and the police fired two shots — one of which permanently paralyzed Williams from the chest down.

Albany police asserted that the shooting was justified because Williams brandished a weapon and rushed the officers. Although the security camera did not show these events, a knife was found nearby that fit a sheath found on Williams’s jeans. The District Attorney sided with the police and charged Williams with felony menacing of a police officer and misdemeanor weapons possession, provoking widespread outrage.

The Albany police officer, James Olsen, who fired the shot that paralyzed Williams was investigated, and he was eventually cleared of wrongdoing by a grand jury. Despite this, he retired on January 4, 2019. Charges against Williams were dropped four days later, and he filed a federal civil rights lawsuit against the Albany police. In August 2019 the lawsuit was expanded to include the City of Albany.

The lawsuit alleged the use of excessive force by the Albany police. It was expanded to include the city of Albany by adding a claim that the city enforced unconstitutional policies that allowed the use of excessive force against Williams.

A video submitted by the defense appeared to tell a very different story from the narrative offered by the police. After the video was enhanced by “zooming in,” virtually everyone who viewed it (with the notable exception of Police Chief Eric Hawkins) agreed that Williams was running from Olsen, not charging toward him, at the time Olsen fired his gun.

November 2020: Vebra Moore settlement:

Vebra Moore filed claims of excessive force, false arrest, illegal imprisonment and failure to intervene against the two police officers she alleged assaulted her as well as a supervisor. The altercation began when Moore tried to re-enter a bar that the police had cleared due to a report of a stabbing.

The police initially charged Moore with felony assault. The court, however, convicted her of two misdemeanors instead—disorderly conduct and resisting arrest. Although the city did not admit liability, Moore claimed that the police:

  • Slammed her into the hood of a police car;
  • Slammed her into the pavement;
  • Threw her into a police car, injuring her knee;
  • Lifted her up by her handcuffs;
  • Punched her and kneed her several times;
  • Slammed her onto the floor; and
  • Brought her into the police station through the back door, an area not monitored by cameras.

The city of Schenectady settled with Ms. Moore for $250,000.

Constitutional Rules on the Use of Force by Police

Law enforcement officers have an inherent right to use a certain amount of force in the performance of their duties. This right is limited, however, by various laws at the local, state, and national levels. Ultimately, the legal limits on the right of police officers to use force are defined by the US constitution. Local laws may place further restrictions on an officer’s right to use force, but they may not dilute constitutional limitations on the use of force by law enforcement officials.

The Use of Force Spectrum

The use of force by law enforcement occurs along a graduated spectrum, which officers may not escalate absent a threat sufficient to justify the escalation. The following are six levels of threat or force that are often used by law enforcement.

  1. Physical presence: The mere physical presence of a police officer is often enough to deter illegal activity.
  2. Speech: While it is probably true that only TV cops ever utter phrases such as “Freeze, sucker!”, verbal statements or commands can be more effective than mere physical presence in inducing compliance, especially if the refusal to obey a command would justify an arrest.
  3. Force without weapons: Police officers are trained to use holds, punches, and kicks to subdue a suspect.
  4. Non-deadly use of weapons: Certain weapons such as batons, mace, tasers, and police dogs can easily be used by a trained police officer against a suspect without a significant risk of killing a suspect.
  5. Deadly force: Deadly force can include the use of a lethal weapon such as a gun or the use of a normally non-lethal weapon in a lethal manner (the use of a chokehold by someone trained to kill with their bare hands, for example).

The use of force along this spectrum must stop as soon as the need for it stops – no punitive retaliation is allowed. The amount of force that an officer is justified in using is the minimum amount necessary to de-escalate an incident (tackling a fleeing suspect who has already been placed under arrest, for example) or to protect the officer or others. Any escalation beyond the minimum is considered excessive.

Although the terms “police brutality” and “excessive force” appear nowhere in the US constitution, the concepts underlying that term are expressed in several places, including:

  • The Fourth Amendment’s prohibition against unreasonable search and seizure (where “seizure” is written to include the seizure of a person, not only property);
  • The Eighth Amendment’s prohibition against cruel and unusual punishment; and
  • The 14th Amendment’s prohibition against depriving anyone of life, liberty, or property without due process of law.

Any of these provisions can provide the basis for legal action against the police.

Although all police brutality is prohibited, special rules apply to the use of deadly force. Deadly force can only be used to prevent a suspect from escaping, for example, if (i) it is necessary to prevent the escape, and (ii) the police officer who used deadly force had probable cause to believe that the suspect posed a risk of death or serious injury to others (including the officer) if he was allowed to escape.

Qualified Immunity

Qualified immunity” is a legal concept that shields public officials, including police officers, from being sued for money damages unless they violated an individual’s “clearly established” rights. Although this concept makes it more difficult to successfully sue the police, its purpose is to prevent public officials from being too hesitant to perform their duties due to fears of civil liability.

Recent Legal Reforms

In June 2020, New York Governor Andrew M. Cuomo signed several bills designed to prevent the abuse of power by the police. The two most prominent reforms were:

  • Banning “chokeholds” by police under any circumstances; and
  • Repealing a statute that allowed New York police officers to conceal their disciplinary history from the public.

Further reforms are expected in the coming months.

The Most Popular Legal Remedies for Victims and Survivors

The most popular remedy for the use of excessive force by police is filing a civil lawsuit under Section 1983 of the US Code.

Filing a Civil Lawsuit for Injunctive Relief and/or Money Damages under Section 1983 of the U.S. Code

A 1983 claim is a complaint that your civil rights have been violated by someone acting under the “color of law,” which would include an on-duty police officer under almost any circumstances.

Although you may seek injunctive relief (a court order demanding that the defendant do or refrain from doing something), most plaintiffs seek money damages from the police officers and from the city government. If the victim died as a result of police use of excessive force, a claim can still be filed on behalf of the victim’s family and the probate estate.

It is best that you consult with an attorney before filing a claim for money damages. One of the main reasons for this necessity is that your claim might be worth a lot more than you think it is. You might be entitled to compensation for:

  • Medical bills;
  • Past, present, and future lost earnings;
  • Pain and suffering; and
  • Any loss of liberty arising from the civil rights violation (false imprisonment, for example).

The “Totality of the Circumstances” Test

Civil rights claims arising from the excessive use of force by police are judged on a case-by-case basis, known in legal parlance as the “totality of the circumstances” test. Factors that may be taken into consideration include:

  • The severity of the victim’s crime (if, in fact, any crime was committed at all);
  • Whether the victim presented an immediate threat to others, including but not limited to the officer;
  • Whether the victim was resisting arrest or trying to escape;
  • Whether other alternatives to the amount of force that was used were available; and
  • Whether the officer warned the victim or could have warned him/her.

Courts also tend to give the officer the benefit of the doubt under the doctrine of qualified immunity (see above).

We Have Won Many Civil Rights Cases Involving Police Misconduct

If you believe that you have been victimized by police brutality, excessive use of force, or another form of police misconduct – or if your loved one was killed by the police – justice demands a response. You have rights that you might not even know about, and E. Stewart Jones Hacker Murphy can help you enforce those rights.

Contact us by completing our online contact form or by calling one of our office locations in Albany, Schenectady, Saratoga, or Troy, so that we can set up a free, no-obligation initial consultation. We look forward to hearing from you!