Attorneys Eye Fallout From Philadelphia Police Officers' Racist Facebook Posts
The project, launched by Philadelphia lawyer Emily Baker-White, looked at thousands of posts from officers in eight police departments across the country.
June 07, 2019 at 05:29 PM
5 minute read
A report about numerous Philadelphia police officers allegedly posting racist and violence-endorsing comments on Facebook has caused a stir in the media, and soon it will cause a stir in the city's courtrooms, according to attorneys.
News broke last week of a project that reviewed the Facebook accounts of thousands of police officers and resulted in a database of posts from officers that included racist, misogynistic and Islamophobic content. According to the BuzzFeed article that broke the news about The Plain View Project, 328 Philadelphia police officers were identified as having allegedly posted problematic content.
The project, launched by Philadelphia lawyer Emily Baker-White, looked at thousands of posts from officers in eight police departments across the country, and revealed comments such as a Phoenix police officer allegedly posting, “Its a good day for a choke hold,” a St. Louis officer allegedly posting “F these muslem turd goat humpers,” and a Philadelphia officer allegedly posting ”should have shot him” in response to a video where a liquor store clerk pulled a gun on a would-be robber, who then backed out of the store.
News of the posts led to quick condemnation, and on Thursday, The Philadelphia Inquirer reported that 10 officers had been placed on desk duty while the police department investigated the posts.
According to several attorneys, the Facebook posts might soon lead to new filings in the criminal and civil systems, with defendants citing the offensive content as evidence of everything from an arresting officer's bias to a defendant having potentially had ineffective counsel.
“Anyone who's got active cases is going through that database and seeing if [officers involved with] any of their defendants are in there,” Kevin Mincey of Mincey Fitzpatrick Ross, who handles both criminal and civil cases, said. “It's very early right now, so everything's on the table as far as we're concerned. You got to keep an open mind on these to see if it affects the cases you have, or are coming in the door.”
Whether or not an issue should be raised, or if it will ultimately be persuasive, will depend on numerous factors, attorneys said, including the officer's rank and role in the case, the specificity of the offensive content, the specific facts of the defendant's case, and even the timing of the posts.
“It all goes back to the same questions,” Bradley Bridge of the Defender Association of Philadelphia said. “One: was this officer a critical officer in the prosecution of the case? And two: whether the new information raises sufficient questions about their credibility at a relevant time period.”
Not only are defense attorneys in Philadelphia reviewing their case loads, prosecutors are as well. Soon after the news broke WHYY reported that the Philadelphia District Attorney's Office was reviewing the database to see whether the posts may implicate the credibility of officers they would otherwise call to the stand.
But, even with posts that implicate a clear bias that is or had been relevant in a given prosecution, it is not guaranteed the material will be admitted. Philadelphia defense attorney Teri Himebaugh noted that the Facebook posts would still need to be authenticated.
“Nowadays due to hacking, it is not sufficient just to show that the post has a person's name/or photo attached to it. You need other corroborating evidence showing it was in fact their post,” she said in an email, adding the corroborating evidence could involve comparing offensive posts with others on the page.
On the criminal appeals front, it is not uncommon for widely covered scandals like this to cause a wave of post-conviction filings. Last year, the controversy involving rapper Meek Mill did just that. Mill's fight to overturn his 2008 conviction hinges on newly discovered evidence indicating that his arresting officer had serious credibility problems. When news about the arresting officer's troubled history came to light last year more than 300 new post-conviction appeals were filed in cases that involved the officer.
Bridge, who has been handling appeals involving allegedly corrupt police officers since 1995, said that, with a recent change in the law, defendants seeking to raise the issue on appeal have one year to flag the troublesome content for the courts. Previously defendants had 60 days.
Civil rights and criminal defense attorney David Rudovsky of Kairys, Rudovsky, Messing, Feinberg & Lin said defendants could also try to argue that, since the Facebook posts were public, attorneys were ineffective if they did not find the posts and raise them as part of their direct defense.
“The amazing thing about this is these officers were posting it on their public Facebook pages,” he said.
But, the wave of new filings likely won't be relegated solely to criminal cases. Mincey said the posts could cause attorneys to file lawsuits they might otherwise have been on the fence about, and attorneys said the posts could similarly bolster civil rights claims already in progress.
Himebaugh noted that some of the Philadelphia police department leadership could be implicated in the scandal—according to initial reporting on the database, 64 of the officers are in leadership roles, such as lieutenant, captain and inspector. She said that could lead to entirely new civil liability issues for the city.
“[It's] very problematic that there were supervisory staff involved because that could establish that there is a 'custom' within the department of permitting/condoning his type of behavior,” she said. “That could theoretically lead to civil liability against the city if any defendants prevail in a 'new evidence' PCRA petition.”
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