Finding the Line Between Necessary and Excessive Force
Attorneys Marc Lopez and Faith Alvarez recently discussed the sentiment behind the nationwide protests, the purpose and scope of qualified immunity, and the need for greater accountability for police officers. What follows is a lightly edited transcript of their conversation.
Marc Lopez
Hi, this is Marc, and I’m with my good friend, Faith Alvarez. Faith is a—I call her a civil rights attorney, and she literally is trying to bring justice to people that have been wrongfully arrested, falsely imprisoned, she has represented families of people that have been killed by law enforcement officers. Faith, am I missing anything on that?
Faith Alvarez
I think that’s an accurate summary. I work a lot with mothers, and I work with children—families who have been victimized by police misconduct.
Marc Lopez
That sounds like a much better way than I described it. I like that. Victimized by police misconduct. With so much stuff going on—we’re filming this June 4 2020, and there has been six straight days of protests in Indianapolis, and there’s a lot of outrage in the community.
And so, Faith, I wanna talk to you—as a civil rights attorney, as someone who’s argued in front of the Seventh Circuit and who’s preparing a brief on civil rights issues for the Supreme Court as we are talking—what is your take on these protests?
Faith Alvarez
I think that the protests are the result of routine police misconduct that has been going unaccounted for. The vast majority of Hoosiers—if they can talk to the folks that I talked to, see the things that I’ve seen—the videos, the photographs, hear the recordings, hear the police radio, hear all the things that I have heard and see the things that I’ve seen—they will agree that there is a serious problem with police misconduct in the state of Indiana.
I can’t take every case that I get a call about, but just knowing that these things are going on consistently—the same thing over and over—I think the protests are completely understandable. I always say that it’s the law of sowing and reaping, or consequences. The result is cause and effect. If an officer is protected from the consequences of his actions—there’s not a lot of consequences when a police officer brutalizes—you see how it took all these different groups to get criminal charges pressed against these officers who killed Mr. Floyd.
Without the accountability, it’s doing two things. Number one, it’s enabling officers to continue with bad behavior, and number two, it’s transferring the consequence to all of us. And the consequence is what you’re seeing outside. You’re downtown with me. They’ve been protesting—I can see it out my window—every day this week, there have been people marching in the streets, protesting the bad behavior. So even if the violence wasn’t from some of the officers, the problem is we’re all harvesting the same crop of violence, and we need to sow some new seeds of accountability and justice.
Marc Lopez
Talk to me about the legal principle that shields officers from police misconduct. It’s called qualified immunity, but give us a dumbed-down version of qualified immunity.
Faith Alvarez
Qualified immunity is the biggest obstacle to bringing a civil rights case and to holding a police officer accountable. It is black letter law. In the federal system, it’s passed by Congress. In Indiana, it’s passed by our General Assembly, and it is black letter law of different circumstances where we’re going to say, Yes, the Constitution was violated, but the person who did the violation, we’re not gonna hold them accountable, because we think it’s important to protect them for the importance of their job.
So police officers—you’ll often hear them say, I was in fear for my safety or in fear for my life, because we’re looking at police misconduct cases from the belief and perspective of the officer. So an officer is going to be addressing an incident or a situation—it doesn’t have to be true what the officer is facing. It’s what he believes is happening, and that’s one of the biggest pitfalls in civil rights cases—we’re dealing with all of our cases from the perspective of the law enforcement officer.
So unless a law enforcement officer comes out and says, Yeah, I went overboard, or, Yeah, I was wrong, or I messed up, or, I used more force than I actually needed to—it’s a very uphill battle to gather evidence and to collect witness statements, and cell phone video has become very key, because you can infer from seeing the circumstances around that no reasonable officer in that position would have felt the fear or the risk—but qualified immunity is a very difficult thing to overcome.
Marc Lopez
And so the original purpose was to make sure officers didn’t feel they couldn’t do their job effectively, but it seems like it’s gone way overboard, and you see the federal court striking things down. What are some of the more egregious examples that you’ve seen?
Faith Alvarez
In 1983 actions—that’s the section of the federal code, 1983, where all the civil rights cases are filed— one of the items that we have to prove as a part of our claim is that the officer was acting under color of law—which basically means that this officer is acting as a law enforcement officer, but he’s not actually using proper authority.
He’s abusing the authority that he has as a police officer by going over the amount of force that they’re able to go, or arresting someone for something other than probable cause of committing a crime. It is abuse of authority is what we’re claiming. Well, qualified immunity says, If the officer is acting reasonably in a role of a police officer, then we’re going to not hold them accountable.
Marc Lopez
So one of the big issues that I constantly hear from my friends who do civil rights—including yourself—is that a lot of 1983 claims are unable to survive summary judgment. So number one, can you explain to anyone who’s watching what summary judgment is, and then why these claims are having problems surviving summary judgment.
Faith Alvarez
I can explain summary judgment—hopefully pretty simply for our non-attorney viewers. A summary judgment is—usually in our cases—it’s the attorneys for the police officers giving the court a summary of the case and the law and asking for a judgment in their favor—a judgment that says, no case.
Essentially, that’s their move. They say, We win, our officers are immune from liability, and you have no case. We have no trial, and we lose, and that happens all the time. The difficulty with qualified immunity is that there is, as I said, the black letter law of qualified immunity. So that’s where the legislature outlines certain things that we’re going to immunize, but the bigger problem in federal cases is that it’s judge-made law.
So judges have the ability to look at what they’ve done in the past and say, This was reasonable, but we think this also was reasonable. So they’ll be able to look at a past decision and say, We agree with what we said, and we’re actually gonna go a step further. So qualified immunity has just really expanded because—well, number one, no two cases are ever the same.
There’s always a different fact scenario. For that reason, I understand why the judges would want to take things on a case-by-case basis. The problem is there’s so much case law from times past to look at that you can really make an argument out of anything. And with the current panels of judges that we’re going up against, they’re really not interested in officer accountability.
We know that there’s two sides of the coin. So on one hand, we have an interest in protecting these officers doing their jobs, and on the other hand, we have the interest of protecting citizens who shouldn’t be brutalized or be subject to constitutional violations. That’s why the Constitution exists—it is to protect us from the government.
Marc Lopez
Faith, you’re telling me that the lawyers defending the police officers literally write a summary of the evidence, present it to the judge, and then the judge can decide if the case moves forward or not.
Faith Alvarez
Yes.
Marc Lopez
So it’s completely diverted from a jury. And so if the judge denied summary judgment—the judge says, No, this is going to keep going—they still get to go to jury trial, and they can still try to convince the jury that the officer acted reasonably. Am I correct about that?
Faith Alvarez
Not so fast. I wish you were correct, because oftentimes we will be able to defeat a summary judgment at the trial court level, but what the city will then do is appeal it, because—as we said—this is judge-made law. So you can take the decision to a higher court and ask that court to review it and see if they want to change their mind. Sometimes they do, and sometimes a new law is invented.
When I talk to people on the phone, and I take calls to see whether or not someone has a case—we call that a consultation—I will ask a lot of questions, and I will do a lot of research before taking a case. The problem is when the law will change—I can’t predict that. So when I believed that I had a solid case, and then the courts move the hoop, and I can’t get to where I was aiming at—it’s very frustrating. But that’s a part of why I’m going to see if the Supreme Court will take one of my cases, because it’s something that they review a lot.
Marc Lopez
It sounds like an uphill battle, I’m not gonna lie. It sounds like a lot of work. It sounds like a lot of time and energy, and you can have it all taken away by a judge. With criminal defense, at least you have a shot of convincing a jury of your peers to move forward like that, and then—the idea of losing a summary judgment and appealing or vice versa—and then it’s still not over—that just seems so insane.
Faith Alvarez
Yeah, one thing that I have to explain to people early on in their case is that it’s difficult to predict when these cases will be resolved, because in some cases, it’s very clear what happened, and I can go straight to the city attorney, and we can work something out.
But sometimes these cases last five years, just fighting back-and-forth, because there are a lot of legal fights. The evidence doesn’t always change. It’s how you argue the evidence and show how it fits your position, and it’s also looking at what new cases are coming out, because everything can change just like that.
Marc Lopez
What’s the difference between prosecuting an officer and suing an officer?
Faith Alvarez
Well, there’s actually a pretty big difference. Suing an officer is what I do.
We file a lawsuit. Like I said, they’re called 1983 cases, and that’s where you’re alleging a constitutional violation. Most often, we allege a Fourth Amendment violation, which is an unlawful search and seizure, including seizure of the person. The lawsuit will file a document called a complaint, and that’s just an outline of the basic facts showing that you have a claim under the law. You file that with the court. We collect our own evidence. Oftentimes we rely on the police investigation, but we’ll also collect evidence from clients and witnesses. This is where cell phone videos are very key—security videos, anything that will prove what happened.
When it comes to prosecuting an officer—I can’t do that. There’s not an average lawyer or a citizen who can prosecute an officer. That is the decision of the prosecuting attorney. What they rely on—and a lot of people say this is unfair—is the police investigation of their own officer. This is the majority of the cases we’re seeing right now in our city—the prosecutor has to look at the police investigation of their own officer and decide whether or not there is sufficient evidence and reliable information to determine that a crime has occurred.
It’s a lot different. A lot of times you’ll hear grand juries be discussed. Now, that’s not required, but a grand jury is kind of like a mock trial. You don’t have to prove that a crime has been committed, but what you’re doing is bringing in a group of special jurors, and you’re having kind of a debate, and you’re seeing whether or not the evidence and information that you currently have would be sufficient to establish whatever crime that you’re thinking of charging the officer with.
There have been a lot of cases we’ve seen on the news throughout the country where people will wait outside the courthouse after the grand jury convenes to hear what the prosecutor’s conclusion is, because whether or not criminal charges are filed, it’s very important to a lot of people who are affected. It’s not required, by the way. You have no right to a criminal prosecution.
Marc Lopez
When you see situations like George Floyd, where they brought the criminal charges immediately—I mean, I say immediately, but there’s a lot of anger that they weren’t brought sooner. I still very rarely see officers prosecuted. I’m like, Oh, that’s pretty fast from a lawyer perspective. The fact that he’s being charged criminally—is that a slam dunk 1983 case?
Faith Alvarez
It’s hard to say. I take cases where the officer is prosecuted, and I also take cases where the officer is not prosecuted, and it’s difficult to say how the evidence is going to develop in either case. I think it’s a stronger case if the officer is charged, particularly if he ends up being convicted.
If there’s a criminal charge against an officer, it’s almost evidence in itself that, Yes, what happened here was unreasonable. Which is the key term that we’re always throwing around—whether or not something was objectively reasonable—and I think if the officer was committing a crime, that would be objectively unreasonable in the minds of most people.
Marc Lopez
So one of the things that you mentioned was the importance of cell phone videos—the importance of surveillance videos—and you guys are relying on the police investigation, but you don’t stop there. Right now as we’re filming this, I still don’t believe the body cams from the four officers involved in the George Floyd murder have been released.
Faith Alvarez
Yeah.
Marc Lopez
So absent bystanders taking cellphone videos, I don’t think that we’d have officers charged at this point. Indianapolis right now—I think—is the largest city without body cams. And for me, as a defense attorney, I’m frustrated by that, because I always have people coming in here saying, The officers did this, this and this, and conveniently, the police report reads entirely differently. I’m a very skeptical person by nature. How helpful would body cams be if they give the footage to you immediately?
Faith Alvarez
I’m going to actually dig a little bit into my background for this. I think you had mentioned earlier, I was formerly a prosecutor, and we had some cases in Indianapolis where IMPD does not use body cams, but I think it’d be great if they did.
When we would get cases that came from the other cities inside of Marion County—for example, Lawrence Police have body cams—and if someone’s arrested by a Lawrence police officer, they will send you the disc from the police department, and you can see everything that happened. As a prosecutor, that’s a great thing, because we have so much discretion. A prosecutor has a lot of discretion over whether or not to pursue a case, modify charges, and decide what is the most appropriate thing to do with the case.
Body cameras are a very clear window into what actually went on, if it was something that happened when the police officers were there. A lot of times they get called to situations that have already happened, but for things that the police officer actually witnesses, that’s very helpful as a prosecutor.
Here on my end, doing police misconduct cases, I think that’s pretty informational as to how the officer reacted. I would like an officer to use force if I’m getting mugged outside when I go home tonight. I would want to call 9-1-1 and have an officer come and use force to make the mugging stop.
I also wouldn’t want to go get in my car tonight, drive home, get pulled over for speeding, and have an officer bust out my window and shoot a chemical agent in my car. I think that would be excessive. That is also a case that I have. I think these cases tend to pop up when you have these non-violent interactions that just completely escalate out of control.
Marc Lopez
It’s interesting. I do a lot of drunk driving cases, and every year I get a case where someone is like, Why are you pulling me over? I’m not getting out of my car. I haven’t done anything wrong. And it’s so funny to see the full gamut.
We have some officers say, I spent a lot of time trying to get them out of the car. Ultimately, I had to get them out and drag them out with another officer. You’ll have other officers say things like, Get out of the car. “No.” Get out of that car! And then they’ll bust the window in, and it’s insane.
The law in Indiana, though, is if an officer asks you get out of the vehicle, you have to get out of your vehicle. They’re protected by qualified immunity, absent of them hurting somebody—or something like that.
Faith Alvarez
One change that I would really like to see is, officers have no legal duty to de-escalate a situation. Now there’s police policy—general orders that give guidelines and recommendations for de-escalating situations, but what happens if an officer chooses not to de-escalate a situation? There’s very little consequence for that.
I can’t bring a case in saying, Well there was excessive force and failure to make any attempt to de-escalate a situation. I think there should be a legal duty to at least make an attempt to de-escalate. It doesn’t even have to be a big thing, but for a lot of people—particularly now—the whole city is going to be very edgy in any interaction with the police. I can predict that pretty easily.
When you come up to a citizen who’s already edgy and you start barking orders at them, of course, they’re gonna be resistant, and I think that there should be some type of duty to de-escalate a situation before busting out their windows or grabbing them out of the car. That’s just my personal opinion. Again, that’s not the law, and there’s a lot of policy debate over why that’s not going to happen.
Marc Lopez
Faith, from your perspective as a civil rights attorney, arguing these cases to federal courts—give me your definition of what you consider to be excessive force.
Faith Alvarez
Force can be anything. Force can be a taser. It can be a gun. It could be a baton. It could be a punch. It could be a slap. It could be grabbing. It can even be handcuffs. Force is anything that’s touching your body. Excessive force is when that goes too far to meet the needs of the current situation.
For example, if you are giving someone a speeding ticket, you should probably just write the ticket and send them on their way. Well, excessive force is when that’s really what should happen, but instead it spirals out of control. Too much force is used in order to issue a simple traffic citation. Someone is mouthing off—this is one that happens quite a bit.
The Indiana Supreme Court has said that cursing—even at police officers—is considered political speech. It’s protected—it’s First Amendment territory. You cannot get arrested for political speech, but it doesn’t mean that it’s not going to upset the officer. I mean, realistically, they’re human beings just like us. They could be having bad days, and if you cussed me out, I’m probably not going to be real happy with you.
The problem happens when they’re still held to this constitutional duty to not use more force than necessary. So oftentimes, if you’re getting mouthy with an officer, I hear all the time, they’ll just squeeze the handcuffs really tight and people get marks and cuts. Not really the best idea—but it’s considered political speech and that would be excessive force, in my opinion, because there’s no real need—if you’re arresting someone who’s just being mouthy, there’s really no need to excessively tighten the handcuffs.
We saw a great trial a couple years back. It was a very interesting case. I dealt with this when I was working on the court side. It went to trial. A lot of these cases don’t even make it to trial, and in short, it was an intoxicated person in the back of the car getting mouthy, and the officer actually just punched him in the face to shut him up. Well, the jury decided, Yes, that was excessive force.
Marc Lopez
So that survived summary judgment?
Faith Alvarez
It survived.
Marc Lopez
And that got to the jury, and the jury said, No, you can’t be punching people.
Faith Alvarez
They said, Yeah, that’s more force than necessary. They just arrested him, put them in the back of the cruiser, and all they needed to do was transfer him to jail. He wasn’t trying to get out of the vehicle, he wasn’t trying to escape the handcuffs, he was just being really obnoxious.
So as a person, I get it, but you cannot use your cloak of authority to be punching people in the face.
Marc Lopez
No, no, you cannot. You cannot do that. Tell me about false arrest. What’s your thought process on that?
Faith Alvarez
With false arrests, that’s when you and I can work together, because they always go hand-in-hand with a criminal charge. I see false arrests most often in situations like disorderly conduct, resisting arrest, and intimidation cases—they’re usually smaller misdemeanors.
If there is no probable cause—if there’s no reliable evidence or information that gives an officer cause to believe that a crime probably occurred—we often see personal motives coming in. For example, if I go outside in a public place, and I happen to be speaking Spanish and it really bothers an officer, he cannot arrest me for disorderly conduct, right? Maybe he will, because it’s just really bothering him, but he decides to arrest me for disorderly conduct because he tells me to stop talking, and I don’t.
Or maybe I have some personal beef with someone and they happen to be a law enforcement officer. We see each other somewhere and get into it, and I get arrested for resisting arrest or disorderly conduct—something like that. There’s not a crime that occurred—we just had this personal beef, and we started arguing.
Again, both of those are actual fact scenarios of cases that I have. So, false arrest cases—they come with these criminal charges that you really have to beat in order to have a successful false arrest case.
Marc Lopez
Define beat, Faith. Are you talking about diversion—it’s out? Are you talking about, We only will accept if there is a not guilty? What is your definition of beat?
Faith Alvarez
Very clearly, you need a dismissal or a not guilty. That’s the only way you can have a false arrest case.
Marc Lopez
So what if the officer is really mad at you, starts beating the heck out of you, and you defend yourself, right then and there? You defend yourself against an officer, and he says, Ouch. That’s then a Level 6 felony, so all of a sudden you have a battery charge against a public safety officer, and you have a resisting law enforcement case.
You hire an attorney and they’re like, Hey, let’s get rid of this felony. You didn’t hit the officer, but yeah, you resisted. So if you plead guilty to the misdemeanor resisting law enforcement to get rid of the felony, can you still move forward on a civil rights case?
Faith Alvarez
It depends.
Marc Lopez
It’s hard. You’re not the only one with that problem.
Faith Alvarez
Yeah, I will say that I probably wouldn’t take the case. There is so much need—and this is another thing I think you had said before—these cases are very difficult, and it’s kind of an uphill battle for a lot of them. We’re dealing with community issues, but the thing is—there’s so many calls that I get—I don’t have enough manpower to take every case. So I can’t take cases that I’m not sure I can win.
We do things on contingency, and we don’t earn any money as lawyers unless we win, and so I cannot in good conscience take a case that I’m not certain that I could prevail on or prove. So when we have a false arrest case, and there is a plea agreement, conviction, diversion, or even those first-time offender things—they look really attractive, but in the language of the diversion, you’re agreeing that—at least in Marion County—you’re agreeing that the officer had probable cause to arrest you, but you are not agreeing to plead guilty. That’s the nuts and bolts of the diversion from my understanding.
I know different counties do it different ways, but you’re admitting that there was probable cause for an arrest. So imagine how hard it is for me to combat that—where you actually put your signature, saying, Yes, the officer had probable cause to arrest me, but it was a false arrest without probable cause.
It doesn’t work in my experience, unless you have some really phenomenal evidence. I don’t think a criminal defense attorney could advise their client—if they genuinely believed it was a false arrest—to even take that plea.
Marc Lopez
From my perspective, a lot of my clients live their entire life—they’re in their 30s, late 20s, early 40s—and they get arrested, and they just wanna make sure this gets behind them as soon as possible. There are many times where some people are like, I want to fight this, I wanna sue, I wanna do X, Y, and Z.
We have to keep pushing forward for a trial, and we have to either get a not guilty or have them agree to a no-strings-attached dismissal. A lot of times people just get cold feet about this, and you and I have worked together on cases where a person wanted to try to sue the police, and we explained, Even if we get the not guilty, it may be five years before we’re able to get some sort of trial on the civil rights claim, and you can see the wind go out of their sails.
It’s very hard, because nobody wants a criminal conviction, nobody wants a felony, but people also want their day in court, and sometimes you can’t get everything you want. It’s hard.
Faith Alvarez
It’s really hard. And again, going back to the protests that we’re seeing now—there’s just not really good avenues to make any consequences for these violations. We need more avenues, and we need better avenues.
I saw the other day that there is a proposed legislation in Congress right now to either repeal or reform qualified immunity. I think that would be great, because that is the top hurdle that I have to cross. There are countless pitfalls in civil rights cases, but qualified immunity is just really the kicker that knocks so many cases out.
If there were more avenues to getting some type of relief or some type of accountability and justice for these cases, I think you wouldn’t be seeing the protests that we’re seeing now. I understand both sides of it, and that’s what makes it confusing. We are just really going to have to find some type of a solution. I don’t know what that is, but there has to be accountability. That’s all I can say.
Marc Lopez
It’s very frustrating because even when I know officers—99% of the officers are just fine. We are seeing the same 1% do things, and then—I don’t know how it is when you’re doing trials, but the judges make it next-to-impossible for me to present prior acts of wrongdoing of an officer in the criminal cases.
So when you say, Hey, Judge, this is the third time somebody said this officer has gone above and beyond, broken a trunk or a glove compartment—
Well, Marc, you can’t use the past to prove this time, so what else do you have? So even when I do criminal trials, judges are blocking evidence—and then there’s rules of evidence, but it sometimes seems like the evidence is stacked so hard against the individual person.
Faith Alvarez
We sometimes call that evidence of habit.
Marc Lopez
I know we’re trying, right? There’s still time, come on.
Faith Alvarez
It’s very difficult to get past indiscretions or past disciplinary actions unless it is right on point with what you’re doing—so we’re seeing the exact same thing occurring consistently.
I had one case where we pulled the officer’s history—which we’re able to subpoena—and it was 44 pages. It included dishonesty—so we have officers lying on police reports, lying to superiors—and that kind of evidence is critical because as you know, it is a lot easier to get in information about a person’s credibility. So when we have evidence that these officers are untrustworthy, then that really helps us to combat the testimony that they’re giving about what they say happened.
Marc Lopez
Faith, I appreciate you taking the time to chat with me. How can someone reach you if they wanna reach out to you and talk to you about a potential case or just to follow up with you?
Faith Alvarez
Well, we are doing virtual visits, so you can reach out to me at falvarez@nleelaw.com and also phone always works, 317-631-5151. I have a Facebook page, and people reach out to me on that all the time, Attorney Alvarez is my Facebook handle, and I talk to people all day.
Marc Lopez
I don’t think anyone told me when I was gonna become a lawyer. I’d be on the phone six, seven hours a day—like, nobody explained that to me.
But hey, Faith, thanks so much. You have a great day.