AFFIRMATIVE ACTION

Believe it or not, particularly offensive police conduct — particularly conduct which
 falls in to the category of "bullying," may be the subject of a successful lawsuit.

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Individuals who have suffered from the commission of common law torts such as trespass, the intentional or negligent infliction of emotional distress, false arrest or imprisonment, or assault and battery may sue the malfeasant under the Federal Tort Claim Act ("FTCA") or state law. Often those same individuals will have suffered violations of their constitutional rights as well, such as the right to be free from unreasonable searches or seizures, to have access to an attorney, or not to be imprisoned without due process of law. For these injuries, victims may bring claims under 42 U.S.C. § 1983, or file analogous federal claims pursuant to the Supreme Court’s ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The choice of claim depends upon (1) the types of injuries being claimed, and (2) whether the law enforcement agency that employed the cop at the time of the violation was a state or federal agency. Wrongs committed by federal agents are subject to redress under the FTCA or through a Bivens action; state agents are subject to 42 U.S.C. § 1983 and the common law tort principles of their respective states.

There are a great number of complex substantive and procedural issues involved in bringing each type of claim, and retaining a competent attorney – hopefully on a contingent basis – should be your first priority if you wish to file a claim. Some crucial points to consider:

1. the FTCA and analogous state statutes set forth very specific requirements about filing administrative claims before filing lawsuits, and if you don’t jump through the hoops properly, the court can dismiss your case;

2. all of these claims are governed by statutes of limitations that will bar your lawsuit if it is not filed in a timely fashion (the time period usually is either two or three years from the date of the injury, but in some cases the period may be as short as one year);

3. punitive damages are available under § 1983 and Bivens actions, and these types of damage claims raise the stakes much higher than the typical tort claim – and they are particularly appropriate where the violation of the victim’s constitutional rights has not resulted in obvious physical or emotional damages.

It is also worth noting that in situations in which the person whose rights have been violated is also a defendant in a pending criminal case, filing a civil suit may give his or her attorney access to useful discovery tools not available under the criminal rules of procedure. Conducting depositions and requesting the production of documents in a civil case might very well turn up information that can help a criminal defendant. These tactics also might make police agencies uncomfortable and more willing to cut a decent deal during plea negotiations. For example, the employment files of police officers and the complaint files of internal affairs divisions may have very interesting information about a bully’s past behavior that would embarrass the agency if divulged. That information, usually very difficult to obtain in a criminal proceeding, should be accessible in a lawsuit against the bully and his bosses for wrongful behavior.

Well, that’s enough for now. For more detailed information about self-defense, I recommend the book in which I have had the privilege to co-author with several experts on marijuana law: MARIJUANA, THE LAW, AND YOU. This book is available through my office, or through Quick Trading Company.

As to the future, I leave you with my same old admonition: Like it or not, the only way a person gets in to the wheelhouse is to be elected. If they turn to pirates and looters once they get there, it’s up to us to run them out and replace them again and again and again. "Eternal vigilance is the price of liberty." That’s what that means. Liberty is a fragile right. It must be constantly defended or it will be lost. Every day. Every year. Every election. Over and over. Forever. Such is human nature and the nature of power and government.

Our enemies know how to manipulate the vote and they do. We have let them have power over us by default. There is a serious danger that the puritans’ intolerance of their fellow citizens — an intolerance that has been adopted as an official government policy — may destroy this society. We must pay attention and vote for the best leaders available, and once they are there, let them know that you will support them for their bravery and foresight, and condemn them for participation in the War on Drugs. If you plan to participate in the political process — and want to be taken seriously — remember that your right to look and act like a doper should be exercised with some intelligence.

The War on Drugs hasn’t failed. It has accomplished what it was destined to accomplish. Although, like every prohibition in the history of civilization it failed to stop that which it seeks to prohibit, it has otherwise brought about all of the inevitable consequences of prohibition: Folding money in the pockets of society’s worst enemies; a thriving black market in which outlaws sell unregulated products to the vulnerable; a thriving industry in which employment is created for dealers, cops, judges, jailers, and, yes, even lawyers; a huge expenditure of cash which, while it has brought no results in terms of reduced drug abuse, has successfully drained off the resources from some of the most socially important programs in our country; incarceration rates which threaten to annihilate minorities in our country; and a crippling of the justice/law enforcement institution to the point where it cannot protects its citizens from real crime. Think about it: while we have spent billions in the futile attempt to eliminate drug and marijuana use, our schools have deteriorated to the point where the entire education system belongs on the endangered species list. Our students score near the bottom in science and math. Our criminal justice system has become too engorged with the loot taken from non-violent offenders to protect us from the dangerous predators among us. Our prisons are so crowded with non-violent offenders that we have neither the space nor the resources to incarcerate the dangerous. A democracy — dependent as it is upon a good public education system, and a criminal justice system that is fair and effective, cannot long survive this misuse of our scarce resources.

The failures and the "accomplishments" of this war have been clear for at least a decade. They have been predictable throughout history. Yet our government continues to incarcerate, impoverish and crush good citizens at an unprecedented rate. By any standards, any act committed in the name of the War on Drugs against this background is itself a war crime!