When The Duty To Serve And To Protect Spirals Out Of Control
Fairfax County detective, David Baucum, overheard [Culosi] and some friends wagering on a college football game at a bar. “To Sal, betting a few bills on the Redskins was a stress reliever, done among friends,” a friend of Culosi’s told me… “None of us single, successful professionals ever thought that betting 50 bucks or so on the Virginia/Virginia Tech football game was a crime worthy of investigation.” Baucum apparently did. After overhearing the wagering, Baucum befriended Culosi. During the next several months he talked Culosi into raising the stakes of what Culosi thought were friendly wagers. Eventually Culosi and Baucum bet more than $2,000 in a single day, enough under Virginia law for police to charge Culosi with running a gambling operation.
By this point, the story is already curious, if not outright disturbing. No county, not even Fairfax County, has so many police officers, and so many good leads, that it can investigate and prosecute every single crime. For better or for worse, police officers and prosecutors make discretionary decisions every day, decisions often based on the severity of the alleged crime. Some crimes are ignored. Some crimes result in a warning, other crimes result in an arrest on sight, and a small fraction of crimes result in a months-long investigation with undercover officers.
I am not sure where a single instance of betting more than $2,000 in a single day should land on that continuum — it strikes me of the sort of crime worthy of a warning at most — but a handful of bets among friends amounting to a few hundred dollars falls absolutely nowhere on that continuum. It is not a “crime.” There is nothing about it worthy of concern, much less arrest, much less an undercover investigation. It is awfully hard to prevail on the defense of entrapment, but I think Culosi might have done it: “Where the Government has induced an individual to break the law and the defense of entrapment is at issue . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992).
All of which is to say, it’s hard to understand why so much police attention was directed at Culosi in the first place.
I represent people with civil rights claims against the police. I’ve represented police officers with civil rights claims against other police officers, and I’ve defended police officers from claims unrelated to their work. Most police officers want to do an honest day’s work, hopefully make the world a better place, and then go home. There are, of course, many officers who are constitutionally unfit for the job, but there also are a fair share of incompetent or malicious lawyers, doctors, butchers, bakers, and candlestick makers. That’s life.
But police officers’ work makes their situation different. They are commissioned by the government to put themselves at risk are authorized to use deadly force. They are given a duty, and trained to have an ethos, of ensuring order. The combination has a way of getting out of hand:
On the night of January 24, 2006, Baucum called Culosi and arranged a time to drop by to collect his winnings. When Culosi, barefoot and clad in a T-shirt and jeans, stepped out of his house to meet the man he thought was a friend, the SWAT team moved in. Moments later, Bullock, who had had been on duty since 4 a.m. and hadn’t slept in 17 hours, killed him. Culosi’s last words: “Dude, what are you doing?”
When deadly force is involved, it doesn’t take much for a curious and disturbing situation to immediately become tragic. No single mistake, no mere negligence, will cause a 38-year-old optometrist to be gunned down by a SWAT team for doing nothing more than betting on college football and, through the encouragement of the police, betting just above the legal limit.
Why was the undercover operation approved? Who decided to forcibly arrest Culosi, instead of just calling him? Who decided a SWAT team was needed? Why was an office who hadn’t slept in nearly a day involved? Why did he have his weapon in an aggressive posture, with his finger on the trigger?
And for each of those, who else knew it was happening, and why didn’t they stop it?
For a respectable member of the community to be killed for no reason, the state itself must have failed him.
But you can’t sue the state for failing you. The state, a legal fiction, enjoys a legal fiction invented for royalty, that of sovereign immunity. Even the federal government can’t authorize suits against the state, as I wrote before. 42 U.S.C. 1983 provides:
Every person who, under color of any [state law], subjects… any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …
1983 enables plaintiffs to sue “persons” who, acting “under color of” state law, violate rights guaranteed by the U.S. Constitution. But 1983 doesn’t enable plaintiffs to sue states that violate constitutional rights. The Eleventh Amendment and “the structure of the original Constitution itself” recognize the sovereign immunity of the states from suits by private citizens, which Congress can’t overcome with merely a statute. See Alden v. Maine, 527 U.S. 706 (1999)(holding Congress generally cannot authorize private suits against the state even in state’s own courts).
You also can’t sue them for wrongful death, the way you can sue a doctor who botches a surgery, a drunk truck driver, or a careless manufacturer — since they’re governmental employees, they, too, are immune from normal tort suit.
The only way, then, that Sal Culosi’s survivors could bring suit is by suing the officers personally under 42 U.S.C. 1983 for violating constitutional rights “under color of state law.” It’s not really “personally,” of course, since the government — you know, the “under color of state law” part — will pay every penny of the defense and the judgment, but we call it “personally” as another legal fiction, to open up new defenses for the government, such as arguments that the officer can’t “personally” afford judgments above a certain size.
But even that’s not simple. There’s no constitutional right to a competent police force. Instead, there are only constitutional rights to deprivation of life without due process, and rights to be free of excessive governmental force.
How much “process” is “due?” Not a lot. How much “force” becomes “excessive?” A lot more than most people think.
Moreover, all those “personally” sued officers — who are sued “personally” only as a legal fiction — get special rights of appeal because they’re sued “personally.” Unlike virtually every other type of lawsuit in America, in which appeals have to wait until the case is over, government officers sued for violating constitutional rights get to appeal in the middle of the case and have an appellate court double-check the ongoing work of the trial court. It happened in Culosi’s case; the government got a freebie appeal even before trial was held. More work, most expenses, more risk, more delay.
As Balko notes, after Culosi’s parents settled the case, his mother posted a heartbreaking entry online the site set up for her son:
I’ll beg your forgiveness Son…because I am not able…to go the distance. They call it…settlement. I call it something else…and because of that…my heart…is not settled…and my hope for justice…and my promise to you…have both been compromised…I believe in my heart that we would have won in court but I was told to consider the risk of that not happening…Our family has already been through almost 5 years of pain, frustration, disappointments, and stress…and there was the opinion that even if we won the county would appeal and that would mean a few more years and resources fighting what could still be a losing battle.
As Greenfield says, although the settlement claims it’s not “an admission of liability,” it is exactly that. Fairfax County didn’t vindicate itself by paying out $2 million after pointlessly entrapping and killing an upstanding citizen in his prime.
But the case is a reminder of just how hard it is for plaintiffs, particularly those with claims against the government, to prevail, even in the most meritorious of cases. It took Culosi’s parents “5 years of pain, frustration, disappointments, and stress” just to get the point where their case could settle pre-trial. Vindication at trial and on appeal would undoubtedly have taken several more years and, indeed, could have resulted in a total loss — a vindication of Fairfax County’s conduct — if the courts didn’t think the legal fictions lined up the right way.
The civil legal system is, at best, a form of rough justice, one that knows only how to speak in terms of money. Fairfax County has spoken as loudly as they ever will: Sal died wrongly, needlessly, and illegally. We can only hope that, when the government’s money talks, they will listen to what it is saying.