by Casey J. Bastian
Across America, “cover charges” are frequently alleged against citizens during encounters with police—especially when it’s a questionable “use of force” situation. Experts have identified a typical pattern involving this abusive tactic. A police officer will use excessive force, unnecessarily injure that person, and then create a false police report wherein the victim is to blame. The three most common charges are resisting arrest, battery on a police officer, or fleeing from an officer. Often, these are the only charges filed, but they are sometimes used in combination with other alleged offenses.
The U.S. Department of Justice (“DOJ”) published a report in 2015 about this tactic and the Ferguson, Missouri, Police Department. The DOJ wrote that a “telltale sign of officer escalation and a strong indicator that the use of force was avoidable” is when there are only cover charges with no explanation as to why the officer tried to detain the person in the first place. Civil rights attorneys claim the tactic has also developed as a way to cover-up excessive force and help a department limit exposure to civil liability.
Resisting arrest statutes are typically so broad that they can be applied to nearly every situation and virtually any type of conduct. And when the only evidence is the officer’s word against the suspect, especially a minority suspect, there is a high rate of conviction. Once a conviction is secured, the abused citizen typically loses their right to sue for police brutality or excessive force.
“Even if the police report is a total lie, it doesn’t matter, because so long as there’s a conviction, it erases the sins of those lies,” says Nora Ahmed, legal director of the ACLU of Louisiana. The police have learned this lesson well and act accordingly. In fact, it appears that the police, the prosecutors, and even the judges act in concert to protect the system.
One blatant example is Jacobi Cage. He was 20-years-old when he experienced this disturbing scenario first-hand. Cage was one of thousands packed in along Veterans Memorial Boulevard in Jefferson Parish, Louisiana. Everyone was watching the Krewe Centurions Mardi Gras Parade in March of 2019. A brawl among two dozen men broke out, and the parade ground to a halt. Deputies broke up the fight and arrested at least one man.
Deputies were calming the crowd down and pushing them back to the parade route when Cage had the misfortune of meeting Sergeant Keith Dowling of the Jefferson Parish Sheriff’s Office (“JPSO”). Dowling, an eight-year veteran of the JPSO, alleged that an “argumentative black male [was] agitating the elements within the crowd by repeatedly yelling ‘[FUCK] You’ while gesturing with both middle fingers at responding deputies.” Dowling wrote this in a complaint and accused Cage as being the Black male. There is only one thing both sides agree on—Cage was at the parade. Beyond that fact, the two versions of events vary wildly.
Dowling claims he tried to quietly remove Cage from the scene in an attempt to de-escalate the situation. Cage allegedly “became violent,” swinging “wildly” at Dowling, hitting the deputy in the chest. Dowling wrote in the report that “he had no choice at that point but to use force to take Cage to the ground.” Cage was taken to the parish jail and charged with battery of an officer and resisting arrest. He spent the next several hours in jail and was released with a notice to appear. Never having been in trouble before, he was now facing a criminal conviction and six months in jail.
Cage went home that night feeling frustrated and helpless, trying to convince his family that he was innocent. According to Cage, the deputy had attacked him for no reason and then falsely arrested him. “The police just grabbed me and started punching me. I had a busted lip. My nose was crooked. I had a torn rotator cuff from football and they reinjured that. I felt like they were about to pull my arm off,” said Cage.
Later that same night and unable to fall asleep, Cage was scrolling through his Twitter feed and found an amazing video. It was proof of his innocence. The video was accompanied by a tweet that read: “man just recording got assaulted and arrested for nothing.” Overwhelmed with relief and shock, Cage played the 38-second clip; a clip that has now been viewed over 284,000 times. The video reveals what really happened, and it doesn’t support the JPSO’s dishonest account of the event.
In the video, Cage is standing behind a barricade, holding his phone in his right hand and recording events. Two JPSO deputies are standing a few inches away staring at Cage. One of the unidentified deputies told Cage to move away. Cage complies. Then Detective Nicholas Broussard smacks Cage’s phone out of his hand, unprovoked, and Broussard gives Cage the middle finger. Cage returns the gesture with both hands. Dowling then lunges at Cage, drags him over the barricade and slams him headfirst into the ground. At no time does Cage become violent or swing at the deputies. Clearly, Dowling lied in his report when he wrote that. In fact, Dowling never even mentions Broussard’s name in the report at all, let alone the fact that it was Broussard who initiated the conflict.
Stephen Haedicke is Cage’s attorney, and he believes this pattern of abusive policing is evidenced in his client’s case and states this is a “textbook example” of how departments shield officer misconduct. “It shows how it’s done. And you got some bad apples who take those lessons to heart,” said Haedicke. And Cage is not alone in being the victim of cover charges in an effort to hide police misconduct. The JPSO has a lengthy history of abusing parish citizens and then using cover charges to protect themselves.
In December 2015, JPSO Sergeant Julio Alvarado grabbed a 14-year-old boy by the neck and slammed his head into the ground. After the boy was taken to the hospital, Alvarado appeared in the boy’s room and warned him, “Use this as an example of what can happen.” The deputy then booked the young boy into the juvenile detention center for resisting an officer and battery on an officer, as well as disturbing the peace and obstruction of a highway. The boy and his friend had been wrestling in a parking lot near the Veterans Memorial Boulevard when the officer arrived. The JPSO later settled a lawsuit over the incident, after initially denying the allegations against Alvarado, for $15,000.
Settlements have been reached in many other cases as well. In 2012, an 18-year-old woman was slammed to the ground when she tried to call her grandmother during a search of her person for marijuana by JPSO officers. They broke three of her vertebrae. Two years later, deputies slammed a pregnant woman into a patrol car as she tried to call 911 after an auto accident. She ended up giving birth to a stillborn fetus later that same night. Both women were charged with resisting arrest.
However, these incidents are not limited to the JPSO. A 2009 report on similar conduct from the Mercury News in San Jose, California, revealed that in 206 cases, the most serious charges filed were resisting arrest and of obstructing the officer. In Chicago, “two out of every three times a [Chicago Police Department] officer reported using force since 2004,” the person was arrested for resisting or aggravated battery or assault on a police officer.
Attorney Gary Bizal has litigated cases against the JPSO for over four decades. He said that, “There isn’t a judge in Jefferson Parish who’s going to find in favor of a defendant that says ‘I wasn’t resisting,’ if the cops say he was resisting.” An arrest causes irreparable harm to a person, especially when the arrest is based on false charges intended to help hide police misconduct. “People are coerced into pleading no contest or guilty, and then barred from ever obtaining accountability for charges that should never have been stuck on them in the first place. There’s no way to win, especially if you’re poor or marginalized,” said Ahmed.
Orlin Lewis experienced excessive force by JPSO deputies in 2019, and there is nothing he can do about it. Lewis stole a car and led police on a chase. When the vehicle crashed, he attempted to run, but after a short foot chase, he surrendered. The JPSO report written by Broussard states that he had to chase Lewis down and tackle him, and then, Lewis punched the detective multiple times. Broussard wrote that he had to use “several closed fist strikes” to subdue Lewis, who ended up in the hospital with multiple facial fractures.
Broussard told the hospital staff that those injuries may have happened when the vehicle crashed and that Lewis hit his head on the steering wheel. Lewis claims that’s a blatant lie. He admits running but insists that he surrendered immediately. Lewis alleged in his lawsuit that Broussard “lifted Lewis to his knees, unholstered his gun and pistol-whipped him, striking him in the face.” According to Lewis, that is what caused the facial fractures. As Bizal said, “[The] goal was to cover up their excessive use of force on Lewis and to justify his bodily injuries thereby denying him his right to recover damages for violation of his civil rights.”
Eventually, Lewis would plead guilty to a reduced charge of simple robbery. However, under the deal, Lewis still had to plead guilty to resisting arrest, meaning that pursuant to a 1994 U.S. Supreme Court case, Heck v. Humphrey, 512 U.S. 477 (1994), Lewis can no longer sue. That ruling provides that a person cannot sue unless the conviction has been overturned or invalidated; there must be a “favorable termination” to the case. As long as a person is guilty of one crime, the misconduct cannot be civilly remedied. Broussard will not be held accountable for the abuse he inflicted upon Lewis because of the guilty plea.
Another problem is that Louisiana, like many states, has a one-year deadline to file suit. Often, prosecutors and judges seem to intentionally extend the case past the deadline, so even when there is a favorable termination, the aggrieved party has no legal recourse to pursue damages because the statute of limitations has run. The ACLU of Louisiana is currently challenging the statute of limitations based on a case with similar facts. “Providing a window of just 12 short months to file a federal civil rights suit before locking the courthouse doors denies people the opportunity to seek justice and has the effect of shielding police officers from being held accountable for their actions,” said Ahmed.
In Cage’s case, even with the video evidence, the JPSO still forwarded the charges to the prosecutor who tried to leverage the false charges to force Cage to accept a lower settlement amount. Haedicke stated, “I’m sure they have used this tactic in many situations.” Cage received a settlement of $40,000 from the JPSO. It took 21 months for the criminal charges to be dropped and another 10 months to reach the settlement. Broussard received a three-day suspension; it does not appear Dowling was punished at all. When asked if Cage felt as if justice has been served, he replied, “No, because you can’t really take away that trauma. Them charging me was insane. It can happen anywhere, to anybody.”
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