NPH Partner Gary Nolan recently defended a Massachusetts officer in an application for a criminal complaint in Ayer Dist. Ct.  The complaint was sought by a suspect thought to be engaged in drug dealing, and grew out of a motor vehicle stop.  After a full evidentiary hearing, the clerk found no probable cause and the case ended well for the officer.

We are noticing a disturbing trend, however, in that there are more and more of these types of cases where officers are the subject of potentially serious criminal cases as a result of making an arrest.  The common denominator seems to be that the complaints are often filed by disgruntled suspects who have a great deal of experience in the CJ system, usually with long records of arrests, etc.  That said, in order to protect yourselves from frivolous complaints from this type of suspect, particularly where any force is involved in the arrest, we remind everyone that it is very important to document all perceived threats in the incident reports.  It is also helpful to have reports of assisting officers, even though it may not be their arrest, that document perceived threats and other actions of the suspect that justified the use of force.  Finally, everyone should be aware by now that video and audio cameras are everywhere, and come in very small packages.  In the case we recently had, the encounter was audio-recorded by use of a cell phone.  Regardless of the legality of the recording, most clerks will likely agree to at least listen/view it, and that may influence their decisions.  In our recent case, the recording was helpful in that it confirmed that the officer did the right thing (interestingly enough, the suspect insisted the clerk listen to the tape, thinking it would help his cause – he was sadly mistaken – hard to believe, but this long-time drug dealer wasn’t all that bright)…

These cases may seem far-fetched when they come up, but often such complainants are given too much latitude because officials want to avoid appearing bias – this is all the more reason it is so important to document any and all perceived threats in cases where any level of force is employed.  Context is everything.