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.
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.
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.
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”).
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. The federal government may be sued in certain circumstances for the misconduct of federal law enforcement officers under the Federal Tort Claims Act (FTCA). 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. Under the FTCA, an administrative claim must be filed with the appropriate federal agency. 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. These cases can be very complicated and require a qualified civil rights attorney.
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.”
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. (A similar requirement for filing an administrative claim with the appropriate federal agency exists under the FTCA.) 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, by certified mail, or online) 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. If you believe your civil rights have been violated, you should consult a qualified civil rights attorney immediately.
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.
What is an adjournment in contemplation of dismissal (ACD or ACOD)?
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 6-12 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 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. The only claims that taking an ACD will prevent 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. 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.
The police violated my rights — should I complaint to the CCRB?
The New York City Civilian Complaint Review Board (CCRB) is an “independent” city agency, created in 1993, whose mission is to “receive, investigate, mediate, hear, make findings, and recommend action on complaints against New York City police officers alleging the use of excessive or unnecessary force, abuse of authority, discourtesy, or the use of offensive language.” The CCRB is an “all-civilian” agency and is not a part of the NYPD.
As described on the CCRB website, the CCRB handles complaints about four kinds of “alleged police misconduct”:
1. Force — this refers to the use of excessive or unnecessary force; behavior that includes punching, shoving or choking a civilian, using pepper spray and up to and including the use of deadly force.
2. Abuse of authority — this refers to abuse of police powers to intimidate or mistreat a civilian; for example, an officer’s refusal to provide name and badge number, an improper strip search or vehicle stop and search, or an improper “stop, question and frisk.”
3. Discourtesy — this refers to cursing and using other foul language or gestures.
4. Offensive language — this refers to slurs and derogatory remarks or gestures based upon race, ethnicity, religion, gender, sexual orientation, or physical disability.
The general procedures for filing a complaint with the CCRB are described here.
As a civil rights lawyer, one of the questions I often am asked by potential clients who believe their rights were violated by the police is whether or not they should file a complaint with the CCRB. There is no one “right” answer to this question, which depends on the specific facts and circumstances of each person’s situation, but let me discuss some basic issues to consider.
First, there is no legal requirement that a person file a complaint with the CCRB before pursuing a civil rights lawsuit against the police, for example, for false arrest or excessive force. The CCRB plays no role under either federal or state civil rights law. (In legal terms, there is no “administrative exhaustion” requirement involving the CCRB.) Rather, the CCRB provides a separate avenue for seeking “justice” when the police violate a person’s rights.
Second, in my experience, the CCRB is a toothless, ineffectual agency that routinely sides with the police and rarely achieves any justice for persons whose rights have been violated. If a person wants justice, he or she needs to go to court.
In my experience, the CCRB almost always finds that a person’s complaint against the police is “unsubstantiated.” Under CCRB rules, this means that “there was insufficient evidence to establish whether or not there was an act of misconduct.” From the CCRB’s perspective, “insufficient evidence” exists whenever there is a “he said – he said” disagreement between the complainant and the police officer(s). Without additional evidence, ideally in the form of video or audio recordings, the CCRB almost always concludes that the complainant has not met his burden of proof (by a preponderance of the evidence) and, therefore, the complaint is “unsubstantiated.”
Significantly, the CCRB will not question the credibility of the police officers or carefully scrutinize their stories and evidence. They do not act as the advocate for the complaining party, like a lawyer will in court. Once they have completed their investigation, they usually decide against the person whose rights were violated.
In sum, my advice is not to expect justice from the CCRB. A person who files a complaint with the CCRB will expend time and effort (for example, to meet with the investigator and provide a statement about the situation) and will believe or hope that justice will be done. It probably won’t be.
Third, nevertheless, it still can be a good idea to file a complaint with the CCRB. Why? Because, although they do not do justice for people, they conduct very thorough investigations that can provide valuable information and documentation for a person who wants to bring a civil rights lawsuit in court. The agency’s investigation process is described here.
The most important part of the CCRB investigation process are witness interviews. The agency’s investigator will interview the complaining party (who must provide a truthful statement, of course), the police officers involved in the incident (who are supposed to provide truthful statements but frequently lie), and other witnesses who can be identified and contacted.
In my experience, police officers usually have not been “coached” by lawyers before meeting with the CCRB investigator and, consequently, are much less likely to lie effectively during the interview. By the time they get to court, however, they usually “get their stories straight.” So having them questioned, under oath and on the record, even before a lawsuit is filed is extremely useful.
As a general rule, therefore, I recommend that a person who believes his or her rights have been violated by the police make a complaint to the CCRB, not to achieve justice, but to take advantage of the agency’s investigation process to obtain information and documentation that will be very useful in a civil rights lawsuit in court. Although this may delay the filing of the lawsuit, I think the trade-off is usually worth it.
Note: There is a big caveat to this recommendation, which has to do with the statute of limitations for filing a civil rights lawsuit in court. If a person makes a complaint to the CCRB, this does NOT “toll” (or stop) the running of the statute of limitations under either state or federal law. Regardless of the CCRB, under state law a person must file a notice of claim within 90 days of the incident and must file a lawsuit within one year and 90 days of the incident; under federal law (42 U.S.C. s. 1983), the lawsuit must be filed within three years of the incident. Because these procedural issues are complicated, it is extremely important to contact a civil rights lawyer as soon as possible after an incident.