What is the meaning of “false arrest"?
What is the meaning of “false imprisonment”?
What is the meaning of “excessive force”?
When can the police search my person, car, or home?
Can I sue the police for violating my rights?
Can I sue the city for violating my rights?
What is a “notice of claim”?
What is the statute of limitations for bringing a civil rights lawsuit?
Can my Facebook page be used against me in a lawsuit?
What is an adjournment in contemplation of dismissal (ACD)?
Q: What is the meaning of “false arrest"?
A false arrest occurs when a person’s liberty is restrained against his/her will and without legal justification. A false arrest may violate a person’s constitutional rights (e.g., under the Fourth Amendment of the U.S. Constitution) and/or common law rights (e.g., under New York tort law). The key issue is whether there was legal justification for the restraint. Police officers may detain a person briefly for questioning if they have reasonable suspicion that the person is engaged in criminal activity. They may arrest a person if they have probable cause (more than reasonable suspicion) that the person committed a crime. Both reasonable suspicion and probable cause require specific, objective reasons for detaining a person, but just because a person is “innocent” does not mean that he/she was falsely arrested.
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Q: What is the meaning of “false imprisonment”?
A false imprisonment occurs when a person is confined against his/her will and without legal justification. Legally and factually, false imprisonment is closely related to false arrest; both require a showing that the victim was unlawfully detained by another person. For example, a false imprisonment may occur when a person is arrested and jailed by the police without probable cause. Or it may occur when one person is held forcibly inside a room or building by another person. Importantly, private citizens rarely have the legal authority to arrest or imprison other private citizens. One exception is the storekeeper’s authority under N.Y. General Business Law § 218. This statute provides retail stores with a limited defense to claims of false arrest/false imprisonment made by suspected shoplifters who are detained and questioned by store personnel.
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Q: What is the meaning of “excessive force”?
In making arrests, maintaining order, and defending life, police officers are allowed to use the amount of force that is “reasonably” necessary under the circumstances. Thus, “excessive force” means that the police used more force than necessary. It is a form of police misconduct, commonly known as "police brutality." Examples of real and alleged police brutality abound in the news. However, just because a police officer uses force against a person does not mean that the officer committed “excessive force” within the meaning of the law. Each case will be judged on the specific facts confronting the police officer. Where the evidence shows that the police officer used excessive force, the victim’s civil rights may have been violated.
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Q: When can the police search my person, car, or home?
It depends on the circumstances. Search and seizure law is one of the most complex areas of constitutional law, with different rules to cover different situations. In general, the police may search a person’s body as part of a valid “stop and frisk” if they have reasonable suspicion that the person is armed and dangerous. They also may search a person’s body for weapons or contraband in conjunction with an arrest. The police may not search a person’s car as part of a routine traffic stop unless they have probable cause that weapons, contraband, or other evidence are in the car. The police may not search a person’s home without a search warrant issued by a judge. Of course, the police may conduct any search if the person freely consents. They also may conduct any search in emergency situations (commonly referred to as “exigent circumstances”).
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Q: Can I sue the police for violating my rights?
It depends. Individual police officers (and other government agents) who violate a person’s civil rights may be sued under federal law and/or state law. The main federal civil rights law is 42 U.S.C. § 1983, which authorizes suits against state and local officials who violate a person’s constitutional rights. Federal officials may be sued under an analogous judge-made law called the “Bivens doctrine.” In addition, state and local officials, but not federal officials, may be sued under state law (which often is more favorable to victims than federal law). Importantly, to preserve your right to bring a lawsuit against state or local officials under state law, you first must file a “notice of claim” with the appropriate government agency. (See below.) However, under both federal and state law, there are various “immunity” defenses that can shield public officials from personal liability, even when they violate a person’s rights. As a result, these cases can be very complicated and require a qualified civil rights attorney.
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Q: Can I sue the city for violating my rights?
It depends. Cities, but not states, may be sued directly under 42 U.S.C. § 1983, if their employees (e.g., police officers) violate a person’s constitutional rights. However, under Section 1983, cities may not be sued under a theory of “respondeat superior,” i.e., that they are liable simply because they employed the wrongdoers. Rather, to hold a city liable under Section 1983 requires showing that the wrongdoers acted in accordance with the city’s own policies or customs. For example, a city cannot be held liable under Section 1983 if a police officer falsely arrests a minority person, unless the city (police department) has a policy or custom of falsely arresting minority persons. However, illegal policies or customs can be difficult to prove; hence, it is difficult to hold cities liable under Section 1983. Under state law, in contrast, the rule of respondeat superior applies and cities may be held liable simply because they employed the wrongdoers. As noted above, however, to preserve your right to bring a lawsuit under state law, you first must file a “notice of claim.”
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Q: What is a “notice of claim”?
A “notice of claim” is a special form that must be submitted to the city (or sometimes the agency) that employs the public official who violated a person’s rights. It is a requirement of state law, not federal law, and it only applies to claims against government agents, not private citizens. For example, to sue a New York City police officer for excessive force under state law, a person first must file a notice of claim with the New York City Comptroller. Importantly, the notice of claim must be filed (either in person or by certified mail) within 90 days of the incident, must contain a complete description of the incident, and must be signed and notarized by the complaining party. The city then has the right to investigate the claim, including taking the complaining party’s deposition (referred to as a “50-h hearing”), before any lawsuit may be filed. Note: Different cities and agencies have different notice of claim requirements. It is important to file a notice of claim in all civil rights cases because state law often is more favorable to victims than federal law, and filing a notice of claim is a prerequisite to asserting state law claims in court.
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Q: What is the statute of limitations for bringing a civil rights lawsuit?
It depends on the particular statute under which a party seeks to assert a claim. In New York, the statute of limitations for bringing claims against state or local officials under 42 U.S.C. § 1983 is 3 years. As noted above, to bring claims against city employees under state law requires filing a notice of claim within 90 days of the incident. Civil rights claims brought under state law against private citizens (e.g., a false arrest claim against a store security guard) generally must be filed within 1 year of the incident. Thus, different laws have different limitations periods. They also have different procedural requirements. Consequently, if you believe that your civil rights have been violated, you should consult a qualified civil rights attorney immediately.
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Q: Can my Facebook page be used against me in a lawsuit?
Probably. Social networking websites, like Facebook, allow users to share information about their personal lives, including thoughts, descriptions, and photographs of what they are doing and thinking, often in "real time." Facebook is the most widely used of these websites. According to Facebook's statistics page, it has more than 500 million active users; more than half of users log onto the website each day; and users spend more than 700 billion minutes on the website each month. That's a lot of activity -- which is subject to discovery if a Facebook user is involved in litigation.
This issue was addressed recently by Justice Jeffrey Arlen Spinner of the New York Supreme Court for Suffolk County in the case of Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). Romano was a personal injury action in which the plaintiff claimed she had sustained serious and permanent injuries that restricted her daily activities, largely confined her to bed, and affected her enjoyment of life. Her public profile on Facebook, however, showed her "smiling happily" "outside the confines of her home." It further revealed that the plaintiff had travelled to other states and "has an active lifestyle." In light of this apparent contradiction, the defendant sought access to the plaintiff's complete Facebook account, including deleted pages, but the plaintiff steadfastly refused.
In a thorough decision, Justice Spinner ruled that the information sought by the defendant was "material and necessary" to the litigation (specifically, it was relevant to the nature and extent of the plaintiff's alleged injuries) and that the defendant's need for the information outweighed the privacy concerns raised by the plaintiff. Indeed, given that the very purpose of Facebook is to share personal information with others, the judge found that the plaintiff "has no legitimate reasonable expectation of privacy" in her Facebook account and cannot "attempt to hide relevant information behind self-regulated privacy settings." The judge ordered the plaintfif to provide the defendant with access to her Facebook account.
Other courts have reached similar conclusions about the discoverability of social networking websites. For example:
EEOC v. Simply Storage Mgt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010) (ordering disclosure and explaining that "a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery").
Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering disclosure and explaining that "relevance of the content of Plaintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff's own determination of what may be 'reasonably calculated to lead to the discovery of admissible evidence'").
Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009) (ordering disclosure and explaining that the information sought by the defendant's subpoenas for the plaintiff's Facebook, My Space, and Meetup accounts "is reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case").
The upshot is that what a person puts on the internet for other people to see probably will have to be disclosed to the other side in the event that the person is involved in a lawsuit.
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Q: What is an adjournment in contemplation of dismissal (ACD)?
An ACD is a special type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55. It applies in misdemeanor cases, and may be entered at any time before the defendant pleads guilty or the criminal trial commences. It may be entered upon motion by the prosecutor, the defendant, or the court with the consent of both parties. An ACD "is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice." This means that the criminal proceeding against the defendant will be adjourned (suspended) for a certain period of time -- usually six months -- at the end of which, the charges against the defendant will be dismissed. The defendant is required to "keep out of trouble" during this six month period, however, otherwise the criminal charges against him may be restored by the prosecutor. (Technically, the charges may be restored if the dismissal "would not be in furtherance of justice.")
Many defendants believe that accepting an ACD means they are admitting guilt. This is not correct. An ACD is not a guilty plea or an admission of guilt. The law is clear: "The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt." N.Y. Criminal Procedure Law 150.55(8). The law further provides: "No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." Furthermore, the law requires that "the record of such action or proceeding shall be sealed." N.Y. Criminal Procedure Law 160.50. In other words, an ACD means that the arrest and prosecution never happened.
Can a person who accepts an ACD sue the police for false arrest and false imprisonment? Yes. Although some courts have stated otherwise, the weight of authoritative opinion holds that an ACD does not affect a person's right to sue the police for false arrest, false imprisonment, or excessive force. See, e.g., Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420 (1983); Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995); Graham v. People, No. 07-CV-1690 (JG), 2009 WL 1531097 (E.D.N.Y. June 2, 2009). The only claims that an ACD defeats are claims that require the plaintiff to show that a criminal proceeding was terminated in his favor. (An ACD is not a finding of innocence; it simply wipes the slate clean.) This includes malicious prosecution. See, e.g., Daniel v. Safir, 175 F. Supp.2d 474 (E.D.N.Y. 2001). Therefore, a person who accepts an ACD can sue the police for arresting and imprisoning him, but may not sue the police for prosecuting him.
Should a defendant accept an ACD? A defendant offered an ACD should discuss the matter carefully with his attorney. From the perspective of a civil rights attorney, however, there is little downside to an ACD. First, it ends the criminal procecution quickly and efficiently, avoiding the risk of conviction and any adverse findings by the criminal court (for example, that the police had probable cause to arrest). Second, although an ACD bars a claim for malicious prosecution, as a practical matter this claim rarely adds much "value" (money damages) to a plaintiff's potential civil rights lawsuit. The plaintiff's damages primarily come from the arrest and imprisonment. These damages don't go away if the person accepts an ACD. Third, a person who wants to "vindicate his rights" in court will have a much better opportunity to do so in a civil rights action than in a criminal proceeding. In a civil rights action, the plaintiff is better able to define the litigation, obtain discovery, and maneuver the case towards settlement or trial. Last but not least, money damages are only recoverable in a civil rights action. For all of these reasons, I generally advise my clients who have been charged with minor crimes to request and accept an ACD at the first opportunity.
For more information about ACDs, see here and here.
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The Warshawsky Law Firm represents clients in employment law, civil rights law, and litigation in the New York City metropolitan area, which includes Manhattan, Bronx, Brooklyn, Queens, and Staten Island, as well as Nassau, Suffolk, Westchester, Rockland, Duchess, Putnam, Orange, and Sullivan Counties.