Every few years, we begin to find larger numbers of defendants showing up at arraignment with cuts, contusions, and other miscellaneous signs that they have been the subject of a recent beating.  These aren’t the heinous criminal types, but the trivial offense types.  Often, their only alleged offense is disorderly conduct and resisting arrest.

It appears that we are again in one of those periods where perps are being “tuned up” by police with greater frequency, based upon the number of comments from defense lawyers of defendant allegations.  Anecdotal evidence, of course, but it’s the nature of the beast.  In the most absurd of these cases, the complaint reads something along the lines of, “The defendant assaulted the informant’s (police officer friend of police officer “victim”) hand with his face, causing informant injury and requiring informant to receive medical treatment.”  I’m sure we’ve all had a few of those complaints in our careers.

In a rational world, the young ADA (assistant district attorney) in ECAB (early case assessment bureau) where these complaints get written would give a nervous giggle when he heard about these, tell the officer to go home and toss the case.  But this isn’t always a rational world.  Too often, the young ADA takes the officer’s sincere expression of pain seriously, writes it up as is and sends it off for arraignment.

In a rational world, the young ADA, oops, I mean young criminal court judge, would read this complaint (technically an Information until converted to a complaint by a supporting deposition), give a nervous giggle and toss it.  But this isn’t always a rational world.  Too often, the young judge takes the officer’s allegations as real and either pushes for a plea or sets some silly amount of bail because of the defendant’s propensity for violence.

Please understand, I am neither advocating nor excusing violent acts against police. Not at all.  But these are “tune-ups,” not attacks on police.  So what is this tune-up?  This is where a cop tells some kid on the street to do something, like move on, or go here or there, or to shut up, and the kid either doesn’t do it, doesn’t do it quickly enough or (god forbid) refuses.  Refuses!  How dare some mutt refuse to comply with the order of a police officer.  We’ll teach him who’s boss.  And then comes the lesson.  He won’t make that mistake again.

As an attorney, I tell my clients to do as they are told by police officers.  Even if they think the officer has the wrong guy, or they don’t want to, or there’s a reason not to do so.  The reason for this advice is simple.  They aren’t going to feel any better showing up at arraignment beaten then they will in sound health.  There’s just no benefit in it for them.  Some complain that this is just wrong.  I can’t disagree, but that really isn’t the issue.  A beating is a beating.  There’s no spin on it that’s going to make them feel better about it.

But here’s the conundrum: How to distinguish the beating given for good reason (where the defendant has in fact resisted arrest, physically attacking the police officer and hence given cause for the police to use force to take the defendant into custody) from the basic tune-up?  Sometimes, the answer is fairly simple, such as the example used above.  Other times, it may not be as clear.

From the police officer’s perspective, their right to protect and defend themselves from violence is paramount.  There’s good reason for this.  A cop is potentially a target of violence at any moment by the very nature of his job, and must be capable of protecting himself without fear of second-guessing so that he can return home each night to his family alive.  It is unreasonable to expect cops to risk their own lives for some legal niceties that are decided in the quiet and peacefulness of a courtroom when the threats come in a flash on the street.

But our faith in the veracity of their position is undermined not by defense lawyers, but by their fellow cops.  We aren’t the ones doing the tune-ups, and making their situation untenable.  We just bring it to light.  So any complaints that our efforts to protect citizens (and yes, even non-citizens) from unwarranted beatings by police tends to threaten the ability of good police officers to defend themselves should be directed at those police officers inclined to assert their machismo, or perhaps their masochism, as well as their low self-esteem issues that manifest themselves by abusing their authority to beat up helpless people on the street.

But that doesn’t fix the problem, since it is not only unlikely to happen (the blue wall of silence type stuff), but it does not address the failure of the prosecution and courts of doing their jobs in distinguishing real offense from those raised to cover-up a good beating.  For those prosecutors and judges who reject the notion that these things can possibly happen, or for those who prefer to default to the “cops good, defendants bad” theory of adjudication, there are a bunch of human beings out there who need you to fulfill your sworn responsibilities of protecting them from the police.   It’s not always easy?  Welcome to life on the streets.