Guest Commentary

Mark D. Jarmie, Esq.

Copyright © July 8, 2015

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In the rare situations when a police officer must use deadly force in the field, he is immediately subjected to a storm of inquiry and criticism by media, community activists, politicians, and not infrequently, command staff or prosecutors seeking to make a name for themselves.  Often on the basis of speculation and underdeveloped facts, the officer’s decision to use force is quickly parsed and criticized.  During this maelstrom of unwanted publicity, departmental regulations or  counsel will generally prohibit the officer from defending himself in the press.  The news story then is almost always one sided, and generally critical of the officer.

With virtual certainty, a civil lawsuit will  be quickly filed against the officer, and often, his department.   And when the lawsuit hits the papers, again, the officer’s side of the story will not be heard, as the lawyers defending the officer are correctly afraid that doing so will result in admissions harmful to their case.

The officer is told to bide his time, that he will get a chance to explain everything in court.  There, before a jury of his peers, he is told that he will finally get a chance to clear his name, to refute the allegations made against him, and to explain what really happened.   And too often, those reassurances that the truth will be heard are just a lie.

Trial lawyers know that less than one civil case in a hundred will ever be heard by a jury.  The rest are dismissed on motions or settled.  “You’ll get your day in court” is the palliative that lawyers tell clients to get them to stand down.  The truth is that particularly in cases involving a police officer’s use of force, the instinct of the politicians and the bean counters will be to quickly settle the suit, and to try to put the whole mess behind them.

It shouldn’t be that way.  Self-interested politicians and lawyers should not try to quiet the voice of truth told by an officer.  As lawyers, we should counsel our police officer clients as to the risks of trial, but ultimately leave the decision to the clients whether or not to try the case.  For two millennia we have been counseled that the truth will set you free.  It is past time that we remembered that wisdom as we defend police officers.

Mark E. Jarmie, Esq., is a trial attorney in private practice who represents police agencies throughout New Mexico. He has served as Assistant U.S. Attorney and the Director of Prosecutions for the New Mexico Attorney General. Mr. Jarmie has successfully tried dozens of jury trials and is a recognized member of the American Board of Trial Advocates. He also assesses liability for police agencies throughout the country through the trial consulting company Mr. Jarmie has been named a Southwest Super Lawyer, a distinction that places him among the top five percent of lawyers practicing in defending civil litigation in the southwest.