Sunday, March 25, 2012 The Warshawsky Law Firm Files $1 Million Civil Rights Lawsuit On Behalf Of Retired Harlem Resident
On March 20, 2012, the Warshawsky Law Firm filed a $1 million civil rights lawsuit on behalf of Linda Benn, a Harlem resident and retired former employee of the New York State Department of Corrections. The lawsuit alleges that on August 17, 2011, several members of the NYPD Manhattan North Narcotics Bureau broke into and searched Ms. Benn's apartment without a warrant and then arrested Ms. Benn on bogus marijuana charges in order to cover up their illegal actions. The lawsuit has been filed against the City of New York and the police officer who was in charge of the illegal operation. The lawsuit is pending in federal district court in Manhattan. Case No. 12-CIV-2041 (SDNY). See the complaint here.
Sunday, December 04, 2011 What Is An Adjournment In Contemplation of Dismissal (ACD)? How Does It Affect My Rights To Sue For Civil Rights Violations?
Consider the following scenario: A young person is arrested by a police officer for disorderly conduct and resisting arrest late one Friday night, held in jail over the weekend, then arraigned on Monday before a judge and released on his own recognizance. He is charged with a violation under N.Y. Penal Law 240.20 (disorderly conduct) and a misdemeanor under N.Y. Penal Law 205.30 (resisting arrest). He denies both charges and believes he was falsely arrested and falsely imprisoned in violation of his civil rights. At his first criminal court appearance, the prosecutor offers him an "adjournment in contemplation of dismissal," commonly known as an ACD. What does this mean? How does it affect his rights? Should he accept the ACD?
What is an 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 (one year for certain drug and domestic offenses) -- 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.")
What is the effect of an ACD?
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?
It depends, of course. 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 in these cases. The plaintiff's damages primarily come from the arrest and imprisonment. These damages don't go away if the person accepts an ACD. Besides, it would be illogical to reject an ACD, which ends the criminal proceeding, in the hopes of later asserting a malicious prosecution claim against the police. Third, very importantly, 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.
Friday, January 21, 2011 U.S. Supreme Court Denies Cert In Important Gun Rights Case, Revell v. Port Authority of New York & New Jersey.
On Tuesday, January 18, 2011, the U.S. Supreme Court denied certiorari (discretionary review) in an important case from the U.S. Third Circuit Court of Appeals involving the right of a licensed gun owner from one state to travel through another state with strict gun laws. The case is Revell v. Port Authority of New York & New Jersey, 598 F.3d 128 (3d Cir. 2010) (No. 10-236). Although the case implicates the Second Amendment and gun rights generally, the specific issue in the case was whether the federal Firearm Owners' Protection Act (FOPA), 18 U.S.C. s. 926A, covered the traveler and preempted the local gun laws of which he was in violation.
The plaintiff in Revell was a licensed gun owner from Utah who in March 2005 was traveling from Salt Lake City, Utah, to Allentown, Pennsylvania. He took a commercial flight that included stopovers in Minneapolis/St. Paul and Newark, New Jersey. When he arrived at the airport in Salt Lake City, he checked his luggage through to Allentown. Importantly, he properly stored his handgun and ammunition in separate hard cases in his suitcase and declared them in advance to the airline.
The plaintiff's problems developed when his flight into Newark was late and he missed his connection to Allentown. As a result, he was forced to spend the night in the airport hotel and take another flight early the next morning. Significantly, the airline had made a mistake and failed to check the plaintiff's luggage through to Allentown. Instead, it ended up in Newark, where the plaintfif retrieved it before going to the hotel. Unfortunately, New Jersey has strict gun laws, and the plaintiff was not licensed to have a handgun or hollow point ammunition in New Jersey.
The next morning, the plaintiff went through the same rigamarole involved in checking and declaring his gun in the Newark airport. However, after his luggage was screened by a TSA employee, the plaintiff was detained and questioned by Port Authority police officers. After the plaintiff explained what had happened with his flight and that he was forced to spend the night, with his luggage, in the airport hotel, he was arrested and charged with unlawful possession of the handgun and ammunition. The plaintiff ended up spending four days in custody before being released on bond. The criminal charges against him were dismissed by the prosecutor four months later. The plaintiff's handgun and related belongings were not returned to him for more than two years after the incident. The plaintiff eventually sued the Port Authority and the arresting officer under 42 U.S.C. s. 1983, which allows a person to sue state and local officials for violating his constitutional rights.
The central issue in the case was whether the plaintiff's actions were covered by FOPA, Section 926A, which provides:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
As the Third Circuit explained (here is the court's opinion): "In essence, s. 926A allows a person to transport a firearm and ammunition from one state through a second state to a third state, without regard to the second state's gun laws, provided that the traveler is licensed to carry a firearm in both the state of origin and the state of destination and that the firearm is not readily accessible during the transportation."
Both the district court and the Third Circuit on appeal held that the plaintiff was not covered by this provision because he had ready access to the handgun and ammunition during his overnight stay at the airport hotel. Accordingly, the courts concluded that Section 926A did not cover the plaintiff's actions and, therefore, his false arrest and due process claims had to be denied because he was in violation of the New Jersey gun laws. Interestingly, neither decision refers to any Second Amendment claims asserted by the plaintiff.
So what's a law-abiding gun owner to do in this situation? The Third Circuit gave the following Orwellian suggestion:
Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight. While this no doubt adds to the inconvenience imposed upon the unfortunate traveler when his transportation plans go awry, it offers a reasonable means for a responsible gun owner to maintain the protection of Section 926A and to prevent unexpected exposure to state and local gun regulations.
In a footnote, the court added:
Of course, this suggestion leaves unanswered the question of what the gun owner should do if the law enforcement officers decline to assist him. It may be hoped, however, that officers will not compound a blameless owner’s problems in that way.
Indeed.
Being "stranded" in a city while traveling is not an uncommon experience; it happens frequently and is a known problem while traveling long distances by plane, especially when multiple connections are involved. It seems clear that the plaintiff in this case was "in transit" the entire time he was in New Jersey. Moreover, there is no evidence that he removed the handgun and ammunition from his luggage during his overnight hotel stay. Even if the plain language of the statute does not cover this situation, the court's interpretation is much too constrained and restrictive.
Consider that the statute plainly authorizes a person to travel by car through a state like New Jersey with a firearm locked in a case and stored in the trunk (even if the firearm would be "readily accessible" during gas and meal stops, etc.). So could the plaintiff in Revell have retrieved his luggage at the Newark airport, rented a car, and then continued on his way to Allentown with the putatively illegal handgun and ammunition in the trunk? It appears that, in such scenario, once the luggage was in the car, it would have been covered by Section 926A. But what about during the interim period, between luggage claim area and the rental car area? Under the Third Circuit's interpretation, the plaintiff would not have been covered by the statute during that period and, therefore, could have been arrested and charged with a crime. This makes no sense. The statute does not state that the firearm/ammunition must be placed in a particular vehicle at the start of the trip and then not be returned to the gun owner until the very end of the trip. Moreover, the statute does not state that the firearm cannot ever, even for a moment, be potentially accessible to the owner during the trip. The statute only says that "during such transportation" the firearm must be unloaded and not be "readily accessible." There may be sufficient play in the statutory wording to cover situations like the one in this case -- that is, assuming a court were inclined to protect gun rights, which most are not.
What is abundantly obvious from this case is that the present gun rights regime is grossly unfair to gun owners and violates the Second Amendment. A person in Revell's situation should never be subject to criminal prosection and should never have his civil rights violated by government authorities. Do we need a stronger federal law to provide the needed protection? Apparently. Hopefully Congress will address this issue in the near future. But what we don't need is more "helpful guidance" along the lines provided by the Third Circuit that essentially turns citizens into supplicants at the mercy of the police.
For useful commentary on the Revell case, see here; for news coverage, see here.
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