Attorney Heffernan talks about “Civil Rights Excessive Use of Force Cases” with Attorney Domingo Rodriguez

On Behalf of | Aug 6, 2021 | Podcasts

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Welcome to another episode of First off, let’s kill all the lawyers.

Uttered in a Shakespeare line back in the 15th century, which kind of drew raucous applause. Still today sort of holds out when you bring that line up, people kind of smirk or chuckle and think it’s not a bad idea. I’m David Heffernan. I’ve been practicing personal injury law in Miami for almost three decades, and I’m an adjunct faculty at the University of Miami School of Law and their trial program. My goal behind putting this program together was to bring in other local South Florida lawyers.

And maybe one by one, we can take a few of them off the list. My guest this morning, a guy that checks a lot of boxes for me. He’s a good friend. He’s a great lawyer. He is a Columbus High School grad. He’s a University of Miami law school grad. He’s an avid cyclist, we ride quite a bit together. So pretty good guy gets a lot of things done. Welcome Domingo Rodriguez. Thank you, David. It’s good to be here. Good. Good. All right. Well, let’s talk because there’s a lot of things that interests me about you.

Your background is interesting. You came were born in Cuba, right? came over here. But you’re true, you know, sort of Miami kid, right? That’s true. Greg, I grew up literally blocks from where we’re sitting today, and still live blocks where we’re sitting today. So, you’ve kept your world small when it comes to Miami. Fair enough.

But I was interested in looking so family background is in the marine industry. And yet at the same time, you were doing things at South Miami hospital. So, we’ve sort of got healthcare provision and Marine, and you go to law school Why?

Well, that’s a good question. And it

I made friends with a guy that I sold a boat to who was a very good lawyer that most people, at least in our world know a gentleman by the name of Stuart Grossman. And Stuart’s very good friend of mine, right? So, Stuart,

I had always I was always interested in law. But during the process of selling Stuart a boat, he he mentioned, he said to me one day, Domingo, you know, you would be a good lawyer because you’re a good salesman. And that’s what we do as lawyers, we sell our case to a jury. So Stuart is he gave he, I was sort of leaning in that direction. But he kind of gave me the final push. Stuart can be very persuasive when he wants Oh, for sure. Oh, great guy, good firm Andy off is one of my closest friends been with him for forever. So I think very fondly of them. So it gets you into law school. And then I know, you come out of law school. You actually start in with a friend of mine, your former partner, john Aronson in the maritime field. Well, actually, I want to go back, this is what I wanted to talk to you about. You actually started with Stanley Rosenblatt. True. Okay. So I got to spend a few minutes on this just because I’m fascinated because I think, you know, again, anybody that’s been around Miami, or in the legal community anywhere, know, Stanley Rosenblatt and what was it $145 billion verdict, you know, a first on behalf of the Air Flight attendants, and then Floridians and everything else. And of course, form the basis he took on tobacco companies and formed the basis of the whole angle progeny now that all of these tobacco cases go forward with that premise.

But a little bit of a fascinating guy because a mom and pop shop, and the guy took it on big tobacco. Right. So tell me how you start with Stanley Rosenblatt? Well, it comes back to
my tenure, if you will, as a law clerk with the firm that was formerly known as Spence, Payne, matching and Grossman when I was in law school. And truth be told, when I was in law school, I wanted very badly to stay with that firm when I graduated, but the stars just didn’t line up.

In one day, JB Spence who’s a senior guy at that firm, also a very well known and recognized down the street from him. I’m very close friends with his son, john, I used to vacation with him all the time down at Ocean reef. There you go. JB was a fascinating, fascinating man. JB walks into the law clerks room that the Old Firm one day and he says Domingo, I just had lunch with Stanley Rosenblatt and he’s looking for an associate. So I told him about you. If you’re Do you know who he is? And I was, of course, I know who Stanley is. So he said he, I told him that if you were here, I’d send you over for an interview. So I went across the street, met with

with Stanley and his then partner, Neil Roth, who ironically is now partners with Stuart Grossman, right, and they interviewed and hired me on the spot. And then I started working with them the next one day and I ended up about a year and a half working with Stanley and from there I his way

My maritime career really started after I left Stanley, I went to work for a firm that doesn’t exist anymore. But it was at the time it was called Hayden and Milliken and Coral Gables a very well known firm that focused on maritime law. And the reason I was attracted to maritime law is what you alluded to earlier, as I grew up, my family growing up had a boat yard in North Miami, so I grew up around the water and around boats, and I was always interested in the I went to law school wanting to be a maritime lawyer. Okay, so I, which is probably not common, I think, you know, most people that go to law school end up in a field where they get a job. Yeah, well, the problem is, and I’ve handled, you know, death and accident cases out there, the problem is, then you get into maritime law, and you take a lawyer like me, who understands sort of the civil law and everything else, and you get into the weeds of the maritime law, and you’re like, whoa, wait a minute, like, this is a little more complicated. We had a horrible case in the keys, but we had to measure just exactly how far off landed was and and if this mangrove is sticking up at low tide does that count versus this and gets a little complicated maritime law can be a quagmire for non maritime attorneys. And I would not recommend an attorney who’s not really versed in maritime law to take on a maritime case, because it’s just a recipe for disaster. The maritime law community in Miami is pretty small. Everybody knows everybody, right? But so when we see somebody, I can tell you that during the years, I was practicing, almost exclusively maritime law, when I would see an attorney and attorney on the other side of the case, if I didn’t know him, he wasn’t really a maritime lawyer. Right. And it was,

it often didn’t turn out well for them. Alright, so let’s segue. And again, one of the things I like to do on this program is talk about things that are our current in law. And this is actually, you know, we’re going go back and talk to civil rights, because that’s sort of where your career has evolved to, so doing a maritime but evolved into civil rights. And I say, current and trending, although, it goes back to the 1800s when it was first enacted. Correct, you know, but then since dormant but so let’s talk about civil rights, and let’s tread into excessive force by police and claims against police officers and, and kind of tell me how your career shifted into that. And then I want to talk about that type of law.

So I got involved in civil rights litigation, about 12 years ago, and it was almost accidental. And a very good friend that started with one case, a very good friend of mine, who’s a criminal defense attorney had a client who had a problem,

excessive use of force interaction with a police officer, and he asked me what I thought about it, he was a criminal defense attorney, he’d come out of the public defender’s office and was then and still is in private practice. We started talking about the case. And at that point in time, I had never done a civil rights case, but I was interested in it. And so anyway, we, after I got a handle on what needed to be done, we filed that lawsuit in federal court, and federal court because of my Admiralty background was is a place where I’m comfortable. Right. And there’s, you know, most non lawyer, people don’t appreciate the difference between federal court and state court litigation, it’s two different worlds. And many lawyers, as you probably know, don’t want to have anything to do with federal court because it is so different. The rules are different. It’s perhaps more formal, much more formal. Well, I think, much more fun, because I do both but predominantly state court, but I do my fair share of federal court. But I think again, you know, federal court, sort of all the ducks need to be lined up ahead of time. It’s a lot more writing and briefing right than state court, which is a lot more, I think, oral argument and pushing your cases in different ways. So

you’re right. I think people tend to shy away because they’re like, wait, I got an issue with you. I got an issue. We can stay court, I call the judge, we kind of get before the judge and we hash it out. I got an issue in federal court. Well, I got to brief it, you got to respond, I got to reply. And then oftentimes, we wait a long time, while you move forward with the litigation. So it’s a whole different animal, correct. That’s true. So

that case, led that case got some publicity in the local media. And that reporter from the Herald wrote about the case a couple times, it was on a couple of the local TV stations reported on it. And so from that, just by word of mouth, evolved from there, the next thing I know, I’m getting calls from other lawyers, from former clients. And

today, I would say that a good 40% of my practice, maybe a little more even

his civil rights litigation, and I still do some of the maritime stuff, but not as much as I used to at one point in time. It was almost my entire practice, right?

Well, let’s focus on because again, you know, if we paint with a broad brush of civil rights litigation, we can do you know, yeah, and we could do a 40 hour podcast and talk about all of that
let’s isolate now because again, I think it’s in the forefront and you know, unfortunately we’ve just seen it now in Miami Beach, right, with officers being arrested very quickly for use of excessive force and the videotape that’s out there so let’s talk about excessive force and what people can do if they think there’s a claim against the police because then that’s one of those hard things to take on do you take on a police department and what’s happened but we’re seeing more and more of it. Why is that?

I think that in the past year and a half, we’ve seen some real high profile cases that have

have we’ve seen the tape on TV the proliferation of cell phone video of security cameras, wherever we go. I personally pay a lot of attention that I when I’m walking around in a mall or in a shopping center wherever or in a store, there’s security cameras everywhere just because I’m tuned into that I I note I have noticed that and the other thing that has also I think the there was videotape this morning on one of the local

TV stations have an incident that happened overnight in Chicago. Okay, we’re in the video was body cam video. So right police the use of body cam by police departments is has now become almost standard practice. There still are some departments that don’t use body cams, but body cams have.

I think they help in cases where there’s a clear excessive use of force situation. And also the it cuts both ways, because it’ll protect the police correct it. It’s easier, you know, people can eyewitnesses. As you know from litigation, eyewitnesses can tell wildly different stories. But if it’s on video, it’s a lot easier to come to a conclusion. Case in point would be the Miami Beach, the five police officers in the incident that happened in Miami Beach last weekend. So yeah, I think that the tech, just the technology that we have available to us

makes it easier to understand what happens in a lot of these police interactions. And it has been brought to the forefront in the spotlight to the extent that there are bills in Congress now.
You know, seeking to make some reforms in in policing. So I think that’s one of the biggest factors, that it’s become prominent To me, it’s almost amusing because I’ve been dealing with issues of qualified immunity, and municipal liability and those kinds of issues that we talk about in federal civil rights cases. For years, and now everybody’s talking about right well, and in addition to body cam, everybody’s walking around with this. And the footage is there it was it was funny, because last show I had on a watcher who’s a private investigator, who we use quite a bit and again, in the personal injury realm of things, whether it’s a premises liability case, or an auto accident or anything else, getting people on the scene quickly and looking at it. Is there a camera on I 95. You know, which they have if the OTS got cameras there, or in the mall where there’s an incident or, you know, all of a sudden to be able to secure that videotape. It’s worth its weight in gold when it comes to a burden of proof. Right. So you look at those things, but let’s now kind of just peel it back a little bit because clearly,

police officers have a very dangerous job. They are in threat oftentimes. Okay. So where does that line get drawn as to what excessive forces? You know, I mean, some good easy, you know, if anybody has seen the tape of the Miami Beach Police, you know, it’s one of the reasons I think the arrest came about they quickly when a guy’s was handcuffed on the ground, and they’re kicking him, you know, you’re not in threat there. But where did those lines get drawn when someone has an incident with police officers? Well, let me say first that I couldn’t agree with you more. I think that police officers have a very difficult and dangerous job. And we have a great deal of respect for them. I know several police officers and ex police officers well, and I’ve we’ve talked about these issues and it is frankly a thankless job in many ways.

It’s a lot like police officers are a lot like lawyers in the sense that everybody likes to make fun of lawyers. That’s all they need, until they need a lawyer and the same

The same is true with police everybody, it’s easy to watch a videotape of the what happened on Miami Beach, and to then sort of condemned the entire department, right? Which isn’t fair.

And everybody likes to do that until they need the police when you win when you need it, when you’re in a situation where you need to call 911. You want them to be there right now. Right? So we have to honor and respect the work that they do and understand that the that a lot of times they’re working under extremely stressful circumstances. But having said that, there are
hard lines that cannot be crossed.

And there are in unfortunately, in lead in these kinds of cases, too. There’s also

some very broad range of gray cases, which

so when we look at, when we look at a civil rights zone, he comes up with a potential civil rights case, the first thing that we look at is, was there, what was the reason for the police interaction? Was it was there a probable cause a reasonable suspicion for the police officer to initiate the contact with these with the citizen? Where the person they don’t necessarily have to be a citizen? Right? Well, that’s true. Yeah. So the,

you know, that’s the first sort of threshold question, what, how did this interaction occur? Was there probable cause for the police officer to stop and speak to the person question them sometime soon as, which is critical, because in the absence of probable cause, I mean, it changes some of the immunities that are offered to some of the police officers, right, because there are levels of protection. And I want to talk about that in a minute afforded to cities and municipalities and the officers, so that you can’t just treat them as an average citizen to say, okay, you did this. So now I get to sue you. You know, there are different levels. But let’s go back to talk about sort of what, what rises to excessive force? Well, in in general, it’s, well, legally, it’s a if we’re talking about the liability of an individual police officer, and the concept of qualified immunity, police officers, obviously, have they carry weapons that are authorized to use force in circumstances where it’s warranted. And that’s the question when is when is it warranted. And

in a law enforcement scenario,

they are police officers are allowed to use force, even deadly force in a situation where some there’s an imminent danger or imminent peril, or somebody has just committed a violent crime. And they need to use deadly force to either apprehend someone who’s committed a violent crime, or prevent a violent crime from continuing or occurring in the first place. So that’s sort of very broad brush where deadly force or

strong force can be used.

And that is an objective standard. It’s a the, the case law says that a, it’s a the analysis, essentially boils down to whether a reasonably objective police officer would have thought that force was necessary at that under those circumstances. And I think that’s one of the things that’s important is, is to strip away, sort of the politicization of it, because we’ve seen that occur. Now in a lot of different things, okay, where everything becomes politics, I do a lot of medical malpractice, okay. And I look at these things, and people are often hesitant why I don’t want to sue a doctor. But there are duties that doctors have, okay. And again, standard of care as defined by other doctors. within that community. There are duties that police officers have, and I try to explain to people no different than a lawyer. But if you hired a contractor to build your house, and the wall falls down, everybody goes, Oh, I got no problem. I’ll sue the contractor. But then all of a sudden, you get to different things. And they’re like, well, I don’t want to sue my doctor. I don’t want to sue a police officer. But we’re a society of laws. So we have standards that define I guess, what’s appropriate practice for police officers, doctors, lawyers, and we hold people to that. So you know, again, I’m 100% supportive the police department and everything else. But there are times that they go beyond the duties that restrict them. And that’s when cases like this arise, right, the

to put put it in a slightly different way they have legal power and authority to enforce the laws. That’s what they do. And that can sometimes involve

using force even deadly force.

But together with that comes a big responsibility. And it’s not inappropriate to hold them to that higher standard when they cross the line. So and that is our job, our job I view, part of what our job is, is to protect people when the police do cross the line. And with looting to what we were talking about earlier with the video with videotape, in recent years, we’ve seen a lot of examples where it’s easy to make the call.

Where it is like the guy who is flying on the ground down with his handcuffs behind his back and police officer walks up to him starts kicking him that’s clearly over the line.

But there’s a lot of other kids circumstances where it’s not so clear. And even when you have videotape, it’s not always so clear, because you don’t know what may have happened before the videotape the camera and even body cam video is often Herky jerky, and it’s not the guy isn’t pointing in the right direction. And there’s a lot of things that even though we have video, there’s a lot of things that may have happened that we don’t see on that video. So we have to look at the totality of the circumstances, you know, and figure out whether or not there we have a violation of law, either federal law or state law. Alright, so let’s let’s just take in, take an example. somebody thinks that that they’ve been, you know, a victim of excessive force by a police officer. What are the steps that then go from there?

Well, if they if someone thinks that, and we’re talking about excessive use of force cases now, right, because

there’s two arenas in which these cases can be litigated. One is the federal court system, and the other is an in state court. And there’s advantages and disadvantages for both. And you really have to look at the case to see whether it’s a case it’s more appropriate for state court, or more appropriate for federal court, depending upon the circumstances because the standard of or the burdens of proof. And the elements of proof that you need to make are very different between the two. The court systems. I don’t want to get too deep into the law. But in state court, your claims are the general common law,

assault and battery, false imprisonment, intentional infliction of emotional distress, those causes of actions that probably most tort lawyers in the state of Florida know and understand.

in federal court, it’s much different in we’re going back now to what you alluded to earlier, the Civil Rights Act of 1871. Right? And what we all sort of refer to in shorthand as 1983 cases, which refer I was thought it through was your we won the national championship? So it’s a good thing for me. I mean, yeah, section 1983. Is, is where you see, and now we get into constitutional violation. Right. Correct. So if you’re going to file a claim under Section 1983, what are the elements that you have to prove? Well, there’s

typically there’s two

sets of defendants, you have a petition under Title 42. Section 1983 is a federal law that gives someone who whose constitutional rights have been violated a potential cause of action against not only the individual officer or officers involved, but also against the municipality or the county, whoever employs the police department. You don’t sue the for example, not to pick on the city Miami police department but you don’t sue the city of Miami police department, you sue the city of Miami, correct? Because they’re employees of the city of Miami, and in just

so their defenses, their potential defenses are different.

Individual police officers have what we have been discussing as in terms of what’s called qualified immunity. And that essentially says that they

they have the they have immunity from using access or

force in any degree really, when it’s justified when there’s probable cause when they’re within the definition that that we spoke about a little while ago. municipalities have a different

in the common law.

You’re I’m sure you’re familiar with the doctrine what we call respondeat superior your which is the basic concept that an employer is liable. You’re in the course and scope of your employment employers responsible. Well, that doesn’t apply to price in in 1983. litigation to prove a claim against the municipality or the employer, the police, you have to show that the municipality engaged in a pattern and practice of

allowing encouraging turning a blind eye to

constitutional violations. And that is a pretty high bar. In most cases, it’s a pretty high bar to,

to be able to show

custom policies and practices because first of all, I don’t know of any police department who intentionally has, right a written pocket or write it in here. Yeah, here’s you’re not going write it, you’re going do Yeah, but what you do see is you see circumstances where police departments

don’t do good investigations of alleged police misconduct, they will do in an inadequate or sometimes not at all internal affairs investigation.

Again, going back to sort of turning that blind eye, where we may not have written this down, but we’re sorting endorsing it, because we’re not enforcing it. Right. And then together with that, there is a culture among certain departments, it’s worse in some departments in this area in South Florida than in others, but what people refer to as the blue wall of silence, and police officers all know what that means. And, and there are departments that have a serious problem with that because no police officer is ever going to in their terms rat out and a fellow officer.


that’s, that’s a that’s an obstacle. Because if there is no reliable reporting mechanism within the department to keep track of police, misconduct and Police Complaints, then it’s difficult from a later on from our perspective to prove that pattern and practice. So oftentimes, how it gets proven, indirectly or circumstantially by because they didn’t do a good investigation, because they didn’t do an eye investigation, because you can do public records requests, all police records are subject to public records requests, right. So we when we look at a case, one of the first things that we do in every case is that we do public records request to the agency and involved for the police officers personnel file, their internal affairs files, any records of any discipline or any other prior incidents. And that is a part of the evaluation process as to whether or not we’re going to accept the case and take it on because the bar is high in federal court. Now, another difference between the state court arena and federal litigation is in state court, the whoever you sue the it’s typically the municipality, you can only Sue an individual police officer in state court, if they’re really acting out almost outside of the course of scope of their employment, yet they have to prove that they did something to someone maliciously, recklessly, with conscious indifference to the consequences of their actions. problem is when you do that, then that it takes human mental municipality liability away is you can’t have it both ways. That’s true. It’s dicey. So going back to Section 1983. So those are constitutional things. So that would cover under the Fourth Amendment, excessive force, unlawful searches, seizure, right, false arrest, false imprisonment, those all fall under that umbrella. Most of the 1983 cases that we see are Fourth Amendment cases as you based on the things that you just mentioned, there are some and I’ve handled some Eighth Amendment cases in for prisoners, people who get abused or have a problem within a prison system. And those cases would come under the Eighth Amendment, the cruel and unusual punishment prohibition. But in there, there’s first amendment 1983 cases as well. But we don’t see nearly as many of those kinds of cases as the Fourth Amendment violations. I think that when in the national discourse, it’s been going on for the past since really, the George Floyd in the Briana Taylor cases became common parlance in our country.

The majority of cases such as those two cases or fourth amendment cases, and that’s fair to say that it’s mostly 19. Most 1983, litigation is fourth amendment. One thing I want to touch on quickly while we’re on fourth amendment, then I want to get this wrapped up is is one of the other things and you just mentioned George Floyd in some of these other cases, but one of the things that has come out of that is that officers can be held liable for not preventing another officer from exercising excessive force. So talk about that a little bit, which is an interesting thing. And we saw it in the George Boyd case. Now. We’re just standing by while your partner or fellow officers doing something may not be acceptable anymore. Well, I would say it’s always been so right. And there’s a long line of

cases that deal with an officers duty to intervene when they see a fellow officer committing what is clearly an unconstitutional action, beating somebody up with needlessly, essentially, or shooting someone.

So those cases have been around. They’re not as, as comp, they’re not that common. And I think that one of the problems with those kinds of cases is often causation, right.

But there is, in fact, and people should know that, that if they’re involved with an officer, they get a traffic stop, and they get a call for backup. And the next thing, you know, there’s three or four officers there, they the officers who did who are not maybe directly involved in an arrest or a DUI stop, or whatever it may be. They, as you say, very correctly, they have a duty if they’re there, they have a duty to intervene and protect people from a fellow officer if he’s acting outside of the parameters that they’re legally allowed to act. Alright, a lot to digest. It’s what we wanted to go over but, but just just sort of scratching the surface. And I appreciate Domingo coming in, because again, this is something we’re seeing, I think, in light of technology, in light of social media, you know, we’re seeing more and more of this. And unfortunately, the world of politics, that’s sort of smearing the entire message on both sides of everything.

But it is a fascinating system, that that those laws have been back to the 1800s that are levels of protection, obviously on both sides, significant levels of protection to make sure that the police and municipalities are protected and have to be held to certain standards. And likewise, on the other side, you’ve got a heavy burden of proof. But here’s sort of the things that you have to do. And there are rights of redress for people that are victims of this. Sure, absolutely. And,

you know, the title 42 1983 that we’re talking about, has been around since 1871. It was a series of federal laws that were passed in after the Civil War.

But there was really never any 1983 litigation until about the 60s. Civil Rights Movement, right. And, and, and under even under 1983, there was never any municipal liability until about the mid late 70s. Mid late I think 78 is when that was added in. So it is kind of a new field of law.

And it’s now it was a kind of an obscure area of law for a long time. And the events of the past year, year and a half have really brought it now to the forefront. So it’s a good conversation to have with with people so that they understand their rights. And I think that

if anything good can come out of this. I can’t say this enough that I do even though I sue police officers and police departments, we are very selective on the cases that we that we take, because we’re not these cases are not inexpensive to bring in huge investment in time and as well as money. So when we evaluate a case we’re we try to be careful and we look at it from both sides.

I think that one of the things that has happened here is that a lot of police officers and a lot of departments are understanding that they have to do more, they have to have the police, they have to have more what’s referred to as CIT comp,

conflict intervention training, or crisis intervention training, excuse me, and

and then just have more empathy, I think is the right word. Now I’ve heard so many police officers say I deal with criminals every day. I’m a street sweeper in the city of Miami, I pick up the garbage, which is a tough thing. And there’s no doubt there’s a lot of lunatics out there. Yeah. And they use those words, they say those things, but I think that they need to understand that what we were talking about earlier that with the authority and with the power also comes responsibility. And that’s where I see the, from a societal point of view the value of having access to the courts to seek redress when that line is crossed.

So that I

I myself, I really enjoyed doing maritime law, I almost I would say that I got involved in civil rights litigation almost by accident. It was a good friend called and said, I represented this guy and he I think he has I think he was mistreated by the police. Can you look at it and from that evolved, this this whole new area of practice for me and it’s really been

It’s a good feeling. When you have a case I’m I know you’ve experienced this before because we’ve talked about Sure.

When you when you have a case and you get a good result and you feel that the case makes a difference, the case makes a difference because the police department

does things to change the way they do things. So, we went in and one case that we have we, as part of a settlement we insisted that they the department start using body cams which they did not use prior to this incident. We insisted as part of non monetary terms of the settlement included a

citizen’s review panel for to evaluate excessive use of force complaints against the department which they did not have.

That any police of police involved shootings would be should be investigated by an outside agency the Florida Department of law enforcement, if it’s a small municipal department within Dade County, Miami Dade police department is a very good department and I know that they do these types of investigations for various departments around town.

So, I it feels good when you do something that makes a difference for the for our community. Well, and as much as I bash lawyers, I really do think it’s trial lawyers that bring about a lot of change. In cases like these in products cases. You know, we’re seeing it now in Surfside, we’re going see changes in some of those laws to protect people in the future because we are society laws. We’re talking about laws to go back to the 1800s. Shakespeare said in the 1500s. You know, first off, let’s kill all the lawyers. Well, Domingo, here’s one that maybe we can take off the list, and we’ll take it one by one each week. Join us again next week for first off let’s kill all the lawyers.