- IMMEDIATELY CONTACT YOUR INSURANCE COMPANY: If you have been sued for a car accident, something that happened inside your home, or for any other situation where you might have insurance to cover the claim, immediately contact your insurance company and notify them of the lawsuit. In situations like these, the insurance company has a duty to hire an attorney to defend you, but only if you promptly notify them. In Oklahoma, you or your attorney only have 20 days to respond to the lawsuit or a default judgment could be entered against you, so it is imperative that you contact your insurance company immediately. This gives your insurance company enough time to retain an attorney on your behalf and for the attorney to properly respond to the lawsuit.
- CONTACT AN ATTORNEY: If you have been sued (and you do not have insurance or your insurance is not going to defend you), immediately contact an attorney. As we mentioned above, you only have 20 days to respond to the lawsuit once you have received it. If a default judgment is entered against you for failing to respond, it can be very hard, if not impossible, to get a default judgment overturned. It is much easier to simply respond on time and never have the default judgment entered against you, than to try and get a default judgment overturned.
- DO NOT POST ANYTHING ON SOCIAL MEDIA: This one may seem completely obvious or at least it should seem completely obvious, but defendants (and even some plaintiffs) post things on Facebook or Twitter or some other social media site that is damaging to their case. In one case, I was representing a jailer that had been accused of strip searching a woman. This was the central issue in the case, whether or not what happened was in a strip search. Well, unfortunately, the attorney for the plaintiff found that my client had posted on myspace “a strip search with every accommodation” as her quote. This was very damaging and we ultimately lost the case. Likewise, 50 Cent is currently involved in a bankruptcy case. Recently, he has posted photographs of himself with large piles of cash. Because he has been posting these pictures, he was summoned to court to explain to the judge whether he was hiding assets, a very serious charge. Turns out, he was posing with fake money, which is probably even more embarrassing for his public image and persona than the bankruptcy case. The lesson here is quite simply, do not post anything on Facebook that the other side could use against you in court. Just don’t do it!
Former Oklahoma City Police Officer Daniel Holtzclaw was charged with 36 counts of sexually assaulting 13 African-American females between December 2013 and June 2014, while serving as an Oklahoma City Police Officer. On December 10, 2015, Holtzclaw was convicted of 18 counts, including four counts of first-degree rape. Of the 13 victims, Holtzclaw was convicted of sexual offenses involving 8 of the victims. It is quite possible that Holtzclaw will spend the rest of his life in jail. However, for these 13 victims, it is also clear that their Civil Rights have been violated by Holtzclaw and, possibly, by his supervising officers and/or the Oklahoma City Police Department.
These 13 victims, and any other victims of Holtzclaw, would have a Civil Rights claim pursuant to 42 U.S.C. §1983. Section 1983 provides a private cause of action to anyone whose rights, secured by the Constitution or laws of the United States, were violated by a person acting under color of state law. These women’s’ rights were clearly violated. One possible right that would have been violated would be their substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. Due process protections have been provided “to matters relating to marriage, family, procreation, and the right to bodily integrity.” Clearly, a police officer sexually assaulting someone would violate their right to bodily integrity. Williams v. Berney, 519 F.3d 1216 (10th Cir. 2008).
Likewise, Holtzclaw would clearly have been acting under color of state law. Based on the allegations that have been made public, Holtzclaw picked these women up, while on duty, and sexually assaulted them. Because he exercised power “possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law,” he would be said to have been acting under color of state law. West v. Atkins, 487 U.S. 42, 49 (1988). While he was committing these crimes he was acting in his capacity as a police officer and with the authority provided to him by state law. As a result, this is one of the clearest examples of someone acting under “color of state law.”
Further, there may even be a claim against his supervising officers or against the City of Oklahoma City. However, these are much more difficult. The victims would have to show that their rights were violated by virtue of the supervising officials “own conduct.” Dodds v. Richardson, 614 F.3d 1185, 1197 (10th Cir. 2010). This is a difficult burden, but if the victims can show that the supervising officers set in motion a series of events that they knew or reasonably should have known would cause Holtzclaw (or other officers) to violate the rights of the victims, then they could also be held personally liable.
Similarly, if the victims can show that there was a policy or custom of the City of Oklahoma City that caused their rights to be violated, the City could be held responsible for Holtzclaw’s actions. However, this is a very difficult burden, as the victims would be required to demonstrate and identify a specific deficiency in the policies and/or procedures that was obvious and closely related to their injuries.
Finally, even though Holtzclaw was only convicted of sexual offenses relating to 8 of the 13 victims, the other 5 victims would absolutely have a civil rights claim against him. This is because the required standards of proof are different in a criminal case and a civil case. In a criminal case, each allegation against Holtzclaw had to be proven beyond a preponderance of a doubt. This is the highest burden of proof in our legal system. However, in a civil case, which a lawsuit alleging civil rights violations against Holtzclaw would be, the burden of proof is only beyond a preponderance of the evidence-often referred to as more probable than not. This burden is much lower. Because this burden is lower, these women would still have a civil rights claim against Holtzclaw. Ultimately, not only has Holtzclaw committed multiple crimes for which he will be punished, but he has also violated the Civil Rights of these women and they are entitled to bringing a claim against him, personally, for these violations.
♫So I pull over to the side of the road and I heard
“Son do you know why I’m stopping you for?”
Cause I’m young and I’m black and my hat’s real low
Do I look like a mind reader, sir? I don’t know
Am I under arrest or should I guess some more?
“Well you was doing fifty-five in a fifty-four
License and registration and step out of the car
Are you carrying a weapon on you? I know a lot of you are”
I ain’t stepping out of s***, all my papers legit
“Well do you mind if I look around the car a little bit?”
Well my glove compartment is locked, so is the trunk in the back
And I know my rights, so you gon’ need a warrant for that
“Aren’t you sharp as a tack
You some type of lawyer or something
Or somebody important or something?”
Nah, I ain’t passed the bar but I know a little bit
Enough that you won’t illegally search my s***.
“Well we’ll see how smart you are when the K-9s come.” ♫
Jay-Z released “99 Problems” in 2003 and it included this verse about criminal procedure and your rights during a traffic stop. Unfortunately, not all of it is accurate. So, with the increased national focus on traffic stops and citizens’ rights when dealing with the police after the incidents in Ferguson, New York, Texas, and even here in Moore, Oklahoma let’s take a closer look at “99 Problems” and citizens’ rights during a traffic stop. The questions we will answer are: what are your rights during a traffic stop? Can an officer search your vehicle during a traffic stop? And, what about the use of K-9s?
1. YOU HAVE THE RIGHT TO REMAIN SILENT
First, and foremost, if you have been stopped by the police you have the right to remain silent. You do not have to answer a police officer’s questions and your silence cannot be used against you. If you are going to invoke your right to remain silent, you must do so verbally and you must make it clear to the officer that you are doing so. For example, say “I refuse to answer any questions” or “I want to speak to my attorney” or “I wish to remain silent.” However, like all rights, the right to remain silent is not absolute. If you have been pulled over and a police officer asks for your identification, you do have to provide it to him, along with your insurance verification. Also, there is an exception to the right to silence in many states, if a police officer asks you for your name, address, and date of birth, you are required to provide that information.
2. YOU HAVE THE RIGHT TO REFUSE TO CONSENT TO A SEARCH OF YOUR VEHICLE
Second, you have the right to refuse to consent to a search of your vehicle. “Well do you mind if I look around the car a little bit? Well my glove compartment is locked, so is the trunk in the back and I know my rights so you gon’ need a warrant for that.” Do not be fooled by the casualness of the question “do you mind if I look around the car a little bit?”. This is a request to search the vehicle. And, you are fully within your rights to refuse this request. However, the police officer does not need a warrant to search the vehicle if you refuse to give consent. There are several situations where police officers may conduct a search of your vehicle without a warrant, even if you do not give consent., including if the officer has probable cause to believe the vehicle contains contraband or evidence of a crime or your vehicle may be searched if you are arrested, and the officer may seize any illegal objects in your vehicle that are in “plain view.” The most important of these exceptions is probable cause. The United States Supreme Court has found that it is reasonable under the Fourth Amendment for the police to search a vehicle (this includes the entire vehicle, locked glove boxes, locked trunks, and everything inside the car, including any containers) without a warrant whenever they have probable cause to believe the car contains evidence of a crime, because of the inherently mobile nature of vehicles. So, even if your glove compartment and trunk are locked, they may be searched, if the police officer has probable cause to search the vehicle.
However, even if you exercise your right to refuse to consent to a search of your vehicle and if none of the exceptions discussed above exist, the police officer may have a drug dog sniff the vehicle, because this is not a “search” under the Fourth Amendment. The United States Supreme Court has held that dog sniffs do not reveal any information about the contents or the object sniffed except the presence of contraband, of which you do not have any right to privacy. Thus, and this is the key, as long as the traffic stop is not prolonged to allow time for the K-9 unit to get there, the police may have a drug dog sniff your vehicle when they pull you over for a traffic violation and you have no right to object to the sniff.
3. YOU HAVE THE RIGHT TO LEAVE
Third, if you are not under arrest, you have the right to leave. In a traffic stop, once the officer has processed the ticket or warning for the traffic violation that you were pulled over for, unless you have been arrested, you are free to leave in a calm and peaceful manner. Just keep in mind, you may be arrested for a simple traffic violation. Every crime (including a traffic offense) is an arrestable offense.
4. YOU HAVE THE RIGHT TO AN ATTORNEY
Fourth, if you are arrested, you have the right to an attorney. If you are arrested, do not answer any further questions and immediately ask for an attorney. You have the right to talk to an attorney and to have your attorney with you while you are being questioned by the police. You may even exercise your right to an attorney after you have begun talking to the police and once you request an attorney all questions should immediately stop. Even if you cannot afford an attorney, for most criminal charges, one will be appointed to you by the Court.
The bottom line during a traffic stop is:
- You have the right to remain silent;
- You have the right to refuse to consent to a search of your vehicle;
- You have the right to leave, if you have not been arrested; and,
- If you have been arrested, you have the right to an attorney.
However, keep in mind, the best thing to do during a traffic stop is to be polite, respectful, and to cooperate with the police officer. Do whatever you can to set their mind at ease by showing them some basic courtesies:
- Roll your window down all the way;
- Stay in your vehicle;
- Keep your hands on the steering wheel; and,
- If it is at night, turn on your interior light.
Police officers are killed every day during “ordinary” traffic-stops and doing these things will help to alleviate any fears and concerns they may have as they approach your vehicle. If they request your driver’s license and insurance information, provide it to them. Do not argue with the officer about the reason for your stop. This is not the time or place to try and prove your innocence-that is in court, with your attorney. You are not going to convince the officer that he should not have stopped you and, more likely than not, you will just talk yourself into a ticket. And, most important, if you are arrested do not resist or fight. Even if you believe the arrest is illegal, you do not have the right to resist, cooperate, request an attorney and allow your attorney to fight the arrest in court. If you argue with the police, are disrespectful, or resist the arrest you will have “99 problems.”