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Suppose a police officer commits a misdemeanor in the line of duty: Let's say that as an act of retaliation he seized something as "evidence," in such a way that he satisfies the criteria for committing theft and will be found guilty of that crime for that incident.

My general question is, with respect to criminal charges against law-enforcement officers, how far down "the thin blue line" can a misdemeanor reach? Assuming the worst case for the police:

  1. In the given example, suppose the thief's partner was present and on-duty during the commission of that crime, but he said and did nothing on the scene, and his name is on none of the paperwork. Is he potentially guilty as an accessory or abettor?

  2. Now suppose the victim called the station the next day and spoke to the evidence custodian to ask for the return of the improperly seized item. The custodian, of course, has possession of the stolen item and refuses to return it. Can he be charged with a crime – e.g., for possession of stolen property?

  3. Now suppose the victim also called the thief's supervisor to ask for relief and is rebuffed. Is the supervisor guilty of any crime? Even without the call can the supervisor incur any criminal liability due to his failure to prevent or address the crime?

  4. Can the police department as an entity be charged with any crime, since (as I assume the previous items suggest) the fact that the crime was carried out and not corrected (e.g., by immediate return of the property) implicates a number of its officers for criminally acting, failing to act, and – presumably – failing to properly train and supervise the original actor?

I suspect at some point down the line the offense (if any) changes color from criminal to civil. I'm interested in the theory and law on that transition.

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  • I'm confused. It was seized during the course of a criminal investigation? If so, what is the basis for asserting it was stolen? Even if an item seized turns out not to contribute to the case, it's legally taken ( even if the search turns out to be bad, and evidence is suppressed). I'm not sure what you're asking.
    – gracey209
    Sep 14, 2015 at 15:03
  • @gracey209 - Maybe it's a bad hypothetical example: I was trying to think of a crime that isn't instantaneous (like excessive use of force) and that could therefore more clearly implicate parties other than the individual who committed it, but not so involved as fraud/conspiracy. Can you think of a better example?
    – feetwet ♦
    Sep 14, 2015 at 15:08
  • @gracey209 - Meanwhile, do police have some sort of safe harbor for seizing anything if they claim it's connected to a criminal investigation? I assumed that if they can't satisfy that it was properly seized and retained then they would be open to a claim of theft, just like anyone else. If that's not definitely the case I'll post that as a separate question.
    – feetwet ♦
    Sep 14, 2015 at 15:10
  • Yes. When the police seize property in the course of their official duties, they have qualified immunity. The exception is if they use their official position to deprive you of your rights , but what you'v e described is not that because it was in the course of their official duties (what I am talking about is a deprivation of rights that fall outside the scope of what they are legally allowed/obligated to do (like if a cop takes your property and keeps it, tells nobody, never turns it in to evidence). This could give rise to a crime or a Sec.1983 or other color of law claim.
    – gracey209
    Sep 14, 2015 at 15:13
  • The warrant typically delineates what they can search for, and then if they find other things that are illegal, or have reasonable cause to believe its related to the crime, they can take it.
    – gracey209
    Sep 14, 2015 at 15:15

2 Answers 2

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As far as the entity of a police department they can fall under a consent decree as a result of incidents within the department that the federal government has filed a lawsuit against.

Decrees by consent are more binding than those issued in invitum, or against an unwilling party, which are subject to modification by the same court, and reversal by higher courts. The decree issued by consent cannot be modified, except by consent. If the decree was obtained by means of fraud or given by mistake it may be set aside by a court. Errors of law or of inferences from the facts may invalidate it completely.

Typically a consent decree dispenses with the necessity of having proof in court, since by definition the defendant agrees to the order. Thus the use of a consent decree is not any sort of sentence or admission of guilt. Likewise the consent decree prevents a finding of facts, so the decree cannot be pleaded as res adjudicata.

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  • Is a police department only subject to judicial decrees, or is it theoretically possible for them to be subject to crimes (in the same way a corporation may be found guilty of a crime)?
    – feetwet ♦
    Sep 14, 2015 at 14:49
  • A consent decree is just an agreement that the court enters as an order. I'm not sure how this would apply? This is almost always in a civil matter, (can be criminal though) whereby the plaintiff and the defendant ask the court to enter into their agreement, sort of as a supervisor to ensure compliance over the implementation of any duties that emirate from the decree (monetary or equitable).
    – gracey209
    Sep 14, 2015 at 15:08
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I think in your hypothetical, the only individual with liability is the first police officer. Unless there was a conspiracy.

I think the operative legal principle is ei incumbit probatio qui dicit (Proof lies on him who asserts.) A/k/a "Innocent until proven guilty."

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  • Well look at the hypothetical facts. This may be more a definition of crimes problem. E.g., assuming the guilt of the first officer, then the property was stolen and was in the custody of the person in #2. If I tell him it is stolen but the other officer says it is evidence does he have a reasonable defense against "possession of stolen property?" Does the officer in #1 have a reasonable defense to the charge of abetting the original crime? Perhaps the absence of mens rea? I'm hoping for that sort of analysis.
    – feetwet ♦
    Sep 13, 2015 at 21:33
  • @feetwet: Where your question is throwing me off is when you say... "assuming the guilt of the first officer..." and "If I tell him it's stolen..." Before you get to any analysis involving culpability other people, a crime would have to be proven. Police policy would never rely on allegations alone to affect their procedures. If a crime was committed, it would have to be proven first. Would it not? To put it another way... your hypothetical facts would have to be hypothetically proven first (which they are not) for us to treat them as facts. Otherwise, they are just allegations. Do you agree?
    – Alexanne Senger
    Sep 13, 2015 at 21:39
  • Yes. I just amended the question to "give the prosecution every benefit of doubt." I.e., I am interested in worst-case guilt and liability. The question is exactly what crimes could apply in the worst case, assuming as fact that which is asserted to be true in the question. So tell me what the crimes could be, or whether each actor could not reasonably be implicated in any crime at all given how the crimes are defined (or whatever immunity they might have). Of course in any particular instance a crime must be proven beyond a reasonable doubt, innocent until proven guilty, etc.
    – feetwet ♦
    Sep 13, 2015 at 22:01

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