I often consult with clients who claim to be the victims of police brutality and are charged with resisting arrest and or aggravated battery to a police officer. They usually believe they have a claim against the police officers which we can immediately file and pursue to a settlement.

While they may or may not have viable claim and lawsuit against the arresting officers, they have to be cleared of the criminal charges before the civil suit can proceed. Why would this be the case?

The first reason has to do with fact that anything said by the client in the civil suit could be used against the client in the criminal case. There is a judicial policy which requires that the civil suit be stayed until the criminal case is resolved.

The second reason has to do with the fact a conviction on the criminal charges precludes any civil suit. Let's be real, if the client was the victim of police wrongdoing, the police charged the client in an attempt to avoid civil liability. The police have nothing to loose by filing questionable charges. If the client is incarcerated, there is often a strong inclination to plea bargain, a plea for freedom. Because the criminal case is a judicial finding, it has what lawyers call Res Judicata effect. This means that the facts which support the criminal conviction are binding on the client in the civil lawsuit. This almost universally means that there can be no civil suit as a finding that the client hit the cop or resisted arrest means that the cop could use force (even excessive) against the client.

The reality is that this is they way the game is played. The states attorney's office has clients, the police officers who bring the charges. If the prosecutors can help their "clients" out, they have no problem filing the charges. The police officers look out for each other and know how to write self serving reports. Sometimes they can actually win these type of cases. What makes the game interesting is when there are witnesses to the incident or video.

There are few things more rewarding as an attorney as cross examining a police officer with a video that contradicts his report. The answer to the question posed is a result of human nature. Before a citizen can go about suing the police for getting beat up, the citizen has to play the game. Other civil litigants, such as someone injured in an auto accident, do not have to undergo a criminal prosecution in order to pursue the claim. Welcome to my world.