Civil Rights FAQs

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 or ACOD)?

I was falsely accused of sexual assault at college. Can you help me?

Do police officers have the right to order groups of people to "disperse" or be arrested?

The police violated my rights -- should I complaint to the CCRB?

How much is my false arrest case worth?

How can I sue the NYPD for false arrest?

Can I sue the police for improperly disclosing my sealed criminal case records?

Is it legal to videotape the police in New York?

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.  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.     

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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.  (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.       

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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."  Courts usually consider this information relevant to evaluating the truth or falsity of a person's allegations (e.g., a person who claims she is disabled is seen on Facebook waterskiing) and damages (e.g., a person who claims he is depressed is seen on Facebook enjoying himself at parties).  Because people share their social networking websites with others, courts hold that they have "no legitimate expectation of privacy" in the websites, which must be disclosed to the other side during litigation.  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 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 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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Q: I was falsely accused of sexual assault at college. Can you help me?

In recent years, there has been an explosion of sexual misconduct cases at our nation's colleges and universities.  Many commentators ascribe this increase to the U.S. Department of Education's "Dear Colleague Letter" that was issued in April 2011.  The "letter" actually is a "significant guidance document" that advises colleges and universities about their obligations under Title IX of the Education Amendments of 1972 -- specifically, their "responsibility to take immediate and effective steps to end sexual harassment and sexual violence."        

While there is considerable debate about the true incidence of sexual assault among college students,  in their zeal to address this problem, colleges and universities have trampled on the rights -- and ruined the futures -- of many students (invariably male) who have been wrongly accused and "convicted" (by the schools, not the courts) of sexual misconduct.  This is a complicated legal issue, but there is no question that the student disciplinary systems currently in place at many colleges and universities do not comport with basic principles of due process and equal protection.

Is it possible for a college student wrongly accused of sexual misconduct to "fight back"?  Yes, but again the issue is complicated.  To date, there have been at least 86 lawsuits filed across the nation challenging these student disciplinary proceedings.  See here for a listing of these lawsuits.  So far, most of the courts that have ruled on these lawsuits have sided with the schools, but there have been some rulings favorable to the students.   Legally, this is an evolving area, with different causes of action (due process, equal protection, Title IX, breach of contract, defamation, and others) being pursued to accomplish the same goals:  to exonerate the student of wrongdoing, to restore his academic standing, and to obtain compensation for the harms done to him.

At The Warshawsky Law Firm we are available to represent college students who have been wrongly accused of sexual misconduct.  We can assist with pending student disciplinary proceedings and we can represent students in court to challenge the unfair outcomes in these cases.  Because these cases are legally complex and loaded with political agendas, it is important to retain experienced, sophisticated counsel for these matters. 

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Q: Do police officers have the right to order groups of people to "disperse" or be arrested?

As a civil rights lawyer, I frequently am consulted by people, and represent clients, who have experienced the following situation:

They are standing and talking with friends on a public sidewalk, minding their own business and not interfering with anyone else, when they are approached by police officers and ordered to "move along" or "clear out" or "disperse."  Most people in this situation obey the police officers and leave.  But some people challenge the police officers, asking why they have to move, claiming they have the right to be where they are, and refusing to leave.  Almost inevitably, these people are issued a summons or are arrested, usually for "disorderly conduct."

The question they always ask me is, are the police really allowed to boss people around like this and then arrest them when they refuse to obey their commands?

Before discussing the legal issues involved in this scenario, let's be clear:  We're talking about minority persons, primarily blacks and hispanics, living in predominantly minority neighborhoods, who are being bossed around by the police in this manner.  This scenario rarely happens to white persons or in white neighborhoods.  Indeed, my clients refer to this as "standing while black."

In my experience, this is a common NYPD tactic (directed and approved by high-level supervisors), which police officers argue is necessary to help deter and prevent crime.

As a practical matter, they may be right; aggressive policing probably does have some "positive" effect on the level of crime.  But as a legal matter, they are wrong.  In my view, the policing tactic we are discussing here is contrary to well-established state law and violates the First and Fourth Amendments of the U.S. Constitution.  Whatever the "benefits" may be of this policing tactic, they are outweighed by the high cost of violating individual rights, fueling anger and resentment towards the police, and eroding civil liberties for all New Yorkers.

In my experience, police officers firmly believe they have the authority to order groups of people to "disperse" for alleged crime fighting purposes, even people who are behaving in an orderly and peaceable manner.  The officers believe this authority comes from the disorderly conduct statute, which includes a subsection that states that a person is guilty of disorderly conduct when . . . "[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse."  P.L. 240.20(6).  Police officers interpret this provision to mean that they may order groups of people (usually three or more persons) who are congregating in public to disperse, and that refusal to obey their commands constitutes disorderly conduct.  WRONG!

Why is this wrong?  Because the police officers ignore the all-important introductory language of the disorderly conduct statute, which states that, to be guilty of disorderly conduct, a person must act "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  This means that before a police officer may order a group of persons to disperse, they must be congregating "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  People who are congregating in an orderly and peaceable manner -- who are not "disturbing the peace" -- are not acting disorderly and, therefore, the police do not have the "lawful" authority to order them to disperse.

The New York Court of Appeals has discussed this scenario in two recent cases:  People v. Jones (2007) and People v. Johnson (2014):

People v. Jones 

The defendant in Jones was charged with disorderly conduct, for obstructing pedestrian traffic (P.L. 240.20(5)), and resisting arrest.  The information alleged that the police officer "observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic]."  The officer then "directed defendant to move and defendant refused and as [the officer] attempted to stop defendant, defendant did run."  Based on these allegations, the Court of Appeals reversed the lower courts and dismissed the disorderly conduct charge against Jones, explaining (citations omitted):

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm."  The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here.  Something more than a mere inconvenience of pedestrians is required to support the charge.  Otherwise, any person who happens to stop on a sidewalk – whether to greet another, to seek directions or simply to regain one's bearings – would be subject to prosecution under this statute.  Those congregating on the street display "atrociously bad manners” by "discommod(ing) some other persons" but such conduct alone does not necessarily give rise to disorderly conduct.

Significantly, the Court of Appeals also dismissed the resisting arrest charge against Jones, because a person is guilty of resisting arrest only when he interferes with "an authorized arrest of himself or another person" (P.L. 205.30), and the Court of Appeals held that the police officer's arrest of Jones was not authorized (because Jones was not committing disorderly conduct).  In other words, although the officer gave Jones an "order" to disperse, the officer was not authorized to arrest Jones simply for refusing to obey the order; hence, the order could not have been a "lawful order" within the meaning of the disorderly conduct statute. 

The Jones decision stands for the proposition that police officers do not have the "lawful" authority to order groups of people who are peaceably congregating in public to disperse and then to arrest those who refuse to obey their commands.

People v. Johnson        

The defendant in Johnson was arrested for disorderly conduct, for refusing a lawful order to disperse (P.L. 240.20(6)), then charged with criminal possession of a controlled substance when cocaine was found on his person during a search incident to arrest.  Reversing the lower courts, the Court of Appeals held that there was insufficient evidence to support the defendant's arrest for disorderly conduct and, consequently, the drug evidence was suppressed and the indictment dismissed.  Specifically, the Court of Appeals found that "the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences."

The Court of Appeals based its decision on the police officer's testimony at the suppression hearing:

According to the officer's testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police.  The only evidence of any possible impact on the public resulting from their presence was the officer's testimony that one of defendant's companions "was partially blocking" the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it.  There is no evidence that anyone trying to enter or leave the store was actually obstructed.

Based on these facts, the Court of Appeals found that "[t]his was not sufficient to satisfy the public harm element of the statute."  As the Court emphasized, "[w]e have made clear that evidence of actual or threatened public harm ('inconvenience, annoyance or alarm') is a necessary element of a valid disorderly conduct charge" (citing People v. Baker (2013) and People v. Weaver (2011)).

The Court's concluding comment in Johnson highlights the unlawful nature of the policing tactic we are discussing:

It is understandable that police officers become concerned when people they believe to be gang members and their associates gather in public.  It is not disorderly conduct, however, for a small group of people, even people of bad reputation, to stand peaceably on a street corner.

In other words, so long as a group of people are congregating in public in a peaceable manner, the police do not have the lawful authority to order them to "disperse," even for alleged crime fighting purposes.  Indeed, the First Amendment of the U.S. Constitution guarantees the right of the people "peaceably to assemble."  Assuming a person otherwise is in compliance with the law, merely standing with others on a public sidewalk is not illegal.

A Word of Caution

Nothing in this discussion should be construed as advising or recommending that people disobey the police and refuse to comply with orders to disperse.  For one thing, many times these orders are lawful and appropriate and refusing to obey the orders will result in a person's arrest (and possible beating) and prosecution.  For another thing, even when the orders are not lawful and appropriate, refusing to obey them still will result in a person's arrest (and possible beating) and prosecution.  Although in such a situation the person may have a valid civil rights claim, this does not outweigh the costs of being arrested (and possibly beaten) and prosecuted.  Lastly, many local criminal court judges either do not understand or do not care about constitutional rights and will convict a person even when the police acted unlawfully.  Consequently, whenever possible, it is better to avoid any problems with the police. 

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Q: 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 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 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.

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Q: How much is my false arrest case worth?

As a civil rights lawyer, I frequently am consulted by people who have been arrested by the police without justification, what the law calls a “false arrest.”  After describing the facts to me, they always ask me two questions:  first, “do I have a case?” and, second, “how much money can I win in court?”  These are complicated questions that depend on the facts of each case.  Nevertheless, there are certain general principles that apply to all false arrest cases.

Generally speaking, a "false arrest" occurs when a police officer (or sometimes a private person or business) detains or confines a person against his or her will and without proper legal authority.  A false arrest violates both federal law (the Fourth Amendment of the United States Constitution as enforced through 42 U.S.C. s. 1983) and New York law (the common law tort of false imprisonment). 

Under both federal and state law, a person who is falsely arrested is entitled to compensation for (1) loss of liberty, and (2) physical and/or emotional pain and suffering caused by the false arrest.  (Injuries caused by excessive force and malicious prosecution are compensated separately.)

Importantly, a person who is falsely arrested is legally entitled to compensation for loss of liberty (to redress denial of free movement and harm to personal dignity), even if he or she does not experience any additional physical or emotional pain and suffering.  See Kerman v. City of New York, 374 F.3d 93,123-126 (2d Cir. 2004); Gardner v. Federated Department Stores, Inc., 907 F.2d 1348, 1353 (2d Cir. 1990).

Obviously, a person who suffers more harm, including physical and/or emotional injuries, would be entitled to more compensation than a person who suffers less harm, including only loss of liberty.  Nevertheless, “even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours loss of liberty.”  Kerman, supra, at 125-126.

Ultimately, the question as to how much a person should be compensated for being falsely arrested is decided by the jury (or sometimes the judge in a bench trial), which has broad discretion to award an amount of money that is “fair and reasonable” given all of the facts and circumstances of the case.  The jury is not required to award the plaintiff any specific amount of money; it can award a small amount or a large amount, depending on the case.

It is impossible to predict how much the jury (or judge) will award in any given case.  Some cases will be worth more and some cases will be worth less.  However, they almost always are worth less than the client thinks they are worth.  Consequently, it is prudent for lawyers and clients alike to take a cautious, conservative approach in estimating how much a false arrest claim may be worth.  Importantly, the settlement value of a case is less than the potential value of a case that wins at trial.  Why?  Because settlements require compromise, meaning the plaintiff accepts a lesser amount for the case in exchange for the certainty of obtaining reasonable compensation for the false arrest. 

Moreover, this analysis assumes that the plaintiff in fact proves that he was falsely arrested.  A person who was not falsely arrested is not entitled to any compensation for being held in custody, no matter how long the detention or how traumatic the experience (although the person may have other claims, e.g., for excessive force or for denial of due process).        

Lastly, it should be noted that under federal law, but not under state law, a plaintiff who wins a false arrest lawsuit is entitled to recover reasonable attorney’s fees, in addition to compensatory damages.  In many cases, this means that the defendant will be ordered to pay the plaintiff’s lawyer directly, instead of the lawyer taking a percentage of the plaintiff’s jury award.

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Q: How can I sue the NYPD for false arrest?

Police officers have one of the most important and difficult jobs -- maintaining law and order -- without which everything we hold dear, our freedom, our property, our safety, our prosperity, would be in jeopardy.  But this does not mean that police officers are above the laws they enforce or the people they serve.  On the contrary, in "a nation of laws, not men," police officers are required to carry out their duties with a punctilious regard for the constitutional rights of citizens, who are entitled to "life, liberty, and the pursuit of happiness" without unjustified interference by the police.

Unfortunately, in a nation (and city) as large and diverse and tumultuous as ours, police officers often overstep their authority and violate people's rights.  Sometimes they do so intentionally, even maliciously; other times, they do so mistakenly or negligently.  Either way, someone's rights have been violated.  The question is, what can be done about it?  What remedy, if any, does the legal system provide?  Civil rights lawyers, like myself, use the legal system, wherever possible, to help people whose rights have been violated by the police.

Perhaps the most common type of civil rights case involves false arrest.  Generally speaking, a "false arrest" occurs when a police officer (or sometimes a private person or business) detains or confines a person against his or her will and without proper legal authority.

A false arrest potentially violates both federal civil rights law and state common law.  Although the basic definition of false arrest is the same under federal and state law, the procedural rules governing false arrest claims under federal and state law are very different and must be complied with strictly or the person's case will be thrown out of court.  This discussion outlines these differing rules.

Probable Cause

A false arrest claim under federal law arises from the Fourth Amendment of the United States Constitution, which provides, in relevant part:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."  A false arrest, therefore, involves the "unreasonable" "seizure" of a "person."  This language has been interpreted over the centuries to prohibit an arrest without probable cause.  The same definition is used under state law.

Probable cause is the most important concept in false arrest cases.

What is "probable cause"?  Probable cause means "information sufficient to support a reasonable belief that an offense has been committed by the person to be arrested."  Probable cause does not mean proof beyond a reasonable doubt or proof by a preponderance of the evidence.  It does not mean the person is guilty.  It simply means that the police officer had a "reasonable belief" that the person committed a crime.

This is a very low standard, one that is usually satisfied by police officers who perform their jobs competently and in good faith.  (An even lower standard -- "reasonable suspicion" -- is required to justify a so-called investigative stop-and-frisk.)  Importantly, just because a person in fact is innocent, there still may be probable cause for his arrest.

The existence of probable cause is a complete defense to an action for false arrest, under both federal law and state law.  If the police officer had probable cause, therefore, even if the person was innocent, the police officer (or the city) will not be liable for false arrest.  This means that many claims for false arrest will be defeated in court, once the police officer shows the court the evidence he relied upon in arresting the plaintiff.

Of course, if the police officer's version of events is legitimately disputed by the plaintiff, or if the police officer is lying about what happened, or if the police officer's assessment of the situation was wrong, or if the police officer acted in bad faith, then the plaintiff may be able to show that there was no probable cause for his arrest; if so, his claim will be allowed to proceed.

Note:  If a person was indicted by a grand jury, or the criminal court ruled against him at a probable cause hearing, or he pleaded guilty, or the jury convicted him at trial, then he will not be able to sue for false arrest (unless he can prove that he was the victim of police fraud or perjury or suppression of evidence or other serious misconduct).  But accepting an ACD (adjournment in contemplation of dismissal) will not bar a person from suing for false arrest.    

Federal Law

A person who is falsely arrested by the NYPD may sue the police officer who arrested him under federal civil rights law, specifically, 42 U.S.C. s. 1983.  Other laws may apply in certain situations, but Section 1983 is the main federal law used by civil rights plaintiffs.

The statute of limitations for false arrest claims under Section 1983 in New York is three years (note: it is different in other states).  This means that a person must file his lawsuit within three years of the false arrest or his claim will be untimely and dismissed by the court.  

As a general rule, a person's false arrest claim accrues -- i.e., the statute of limitations starts running -- when he is released from custody (not necessarily the same day as the arrest).  If a person is arraigned before a judge and remanded for further detention, his false arrest claim accrues when he becomes detained pursuant to legal process.  This is a technical legal issue that the U.S. Supreme Court addressed in Wallace v. Kato, 549 U.S. 384 (2007).

For most persons, who are released from custody pending the outcome of their criminal matter (whether on bail or ROR), the statute of limitations on their false arrest claims starts running as soon as they are released.  This also is the rule under state law.

Either way, a person who has been arrested should consult with a qualified civil rights lawyer as soon as possible.

There are no administrative prerequisites for filing suit under Section 1983.  This means that a plaintiff may file his case directly in court without first filing a claim with the police department or other government agency.

Section 1983 provides a full range of potential remedies, including actual damages, compensatory damages, punitive damages (only against individual police officers, not against municipalities), and attorney's fees.

Section 1983 can be a powerful statute for plaintiffs, but it has two serious limitations.

First, individual police officers who violate a person's civil rights may escape liability if the court believes that the officers, in effect, made a "reasonable mistake."

Generally speaking, courts are reluctant to hold police officers liable for their misconduct.  Courts will impose liability on police officers only if they violate a person's "clearly established" rights and only if a "reasonable" police officer would have known he was violating the person's rights.  This is the doctrine of "qualified immunity" -- the purpose and effect of which is to excuse police misconduct except in the clearest or most egregious cases.  Unfortunately, many meritorious civil rights lawsuits are defeated on the grounds of qualified immunity.

The second limitation under Section 1983 is that there is no respondeat superior liability by which to hold municipalities vicariously liable for their police officers' civil rights violations.  "Respondeat superior" refers to the basic legal principle whereby an employer will be held vicariously (automatically) liable for the employee's wrongful acts committed within the scope of employment.  This rule does not apply under Section 1983.

To hold a city liable under Section 1983, a plaintiff must prove that the city itself violated his civil rights.  How?  For example, by showing that the police officer who violated his rights was acting pursuant to an official policy or pervasive custom and practice of the police department (e.g., the NYPD's stop-and-frisk program); or the police officer's actions were authorized and approved by a high-ranking official with policymaking authority; or the police department was "deliberately indifferent" to the plaintiff's civil rights by failing to properly train and supervise the abusive officer.  These are the main theories of municipal liability under Section 1983.  They derive from the seminal U.S. Supreme Court case of Monell v. Department of Social Services, 436 U.S. 658 (1978).

Unfortunately, in the typical false arrest case it is extremely difficult for the plaintiff to hold the City of New York liable under Section 1983.  This means that if the individual police officer defendant is granted qualified immunity by the court, the plaintiff loses his case.

State Law

In some ways, state law is both better and worse than federal law when it comes to civil rights lawsuits.  It is better because it provides a remedy directly against the City of New York (and other municipalities).  It is worse, however, because it has a much shorter statute of limitations and imposes strict administrative prerequisities that must be followed before a lawsuit may be filed in court.

To hold a city or city employee (including police officer) liable under state law, a person (called the "claimant") must first file a "notice of claim" with the appropriate government agency.  This is a requirement of New York General Municipal Law s. 50-e 

For false arrest claims against the NYPD, the notice of claim must be filed with the NYC Comptroller's Office.  See here for instructions and forms.

IMPORTANT:  The notice of claim must be filed within 90 days of the false arrest.  (Not three years, as under Section 1983.)

It is crucial that the notice of claim be completed and filed properly, as any errors in the process can bar the claimant from suing in court under state law.  (The notice of claim requirements do not apply to, or have any effect on, a plaintiff's claims under Section 1983.)

Once the claimant submits his notice of claim, the city will investigate the claim, including taking the claimant's deposition (called a "50-h hearing") and obtaining medical and financial records pertaining to the claimant's injuries (e.g., physical injuries, psychological trauma, lost wages, property damage, etc.).  The claimant cannot file his lawsuit in court until he has complied with the city's investigation.  See N.Y. Gen. Mun. Law s. 50-h.

In any event, a lawsuit under state law against a police officer and/or the City of New York must be filed no later than one year and ninety days after the incident.  This is a strict time limit.  If the city drags its feet during the investigation process, the claimant still must abide by this deadline.  (Any legitimate disputes over the city's conduct during the investigation can be addressed in court.)  Accordingly, the sooner the claimant files his notice of claim and complies with the city's investigation, the better.

Significantly, under state law, the doctrine of respondeat superior applies -- meaning that the City of New York will be held vicariously (automatically) liable for the police officer's misconduct -- even if the officer himself is granted qualified immunity (a version of which also applies under state law).  This is the greatest advantage of state law over federal law in civil rights cases.  Indeed, it can be the difference between winning a case and receiving compensation for a false arrest and having the case thrown out by the judge.

Remember, however, that under state law, as under federal law, the City of New York cannot be held liable for punitive damages.  State false arrest law, which derives from common law tort law, also does not provide recovery for attorneys fees.  This means that the plaintiff's attorney will be paid from the plaintiff's damages award or settlement amount (i.e., a contingency fee).

It cannot be emphasized enough how important the filing of a proper and timely notice of claim is for a successful civil rights lawsuit.  Although Section 1983 can be a powerful statute, the best strategy in these cases usually is to combine federal law claims and state law claims in one lawsuit.

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Q: Can I sue the police for improperly disclosing my sealed criminal case records?

Under New York law, when a criminal prosecution against a person terminates in favor of the accused -- for example, by acquittal or dismissal, including an ACD (adjournment in contemplation of dismissal) -- "the record of such action shall be sealed" and "every photograph" and "all palmprints or fingerprints" of the person must be either destroyed or returned to the person (with certain exceptions).SeeCPL 160.50.  A similar set of rules applies when a person is convicted of only a violation or traffic infraction (again, with certain exceptions).  SeeCPL160.55

These sealing statutes are intended to "protect the rights of individuals against whom criminal charges have been brought, but which did not ultimately result in a conviction."  People v. Patterson, 78 N.Y.2d 711, 715 (1991).  As the New York Court of Appeals has explained, “the over-all scheme of the enactments demonstrates that the legislative objective was to remove any ‘stigma’ flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities.”  Id. at 716.  Accordingly, the sealing statutes establish “a general proscription against releasing sealed records and materials, subject only to a few narrow exceptions.”  In the Matter of Joseph M., 82 N.Y.2d 128, 134 (1993) (italics in original).

Perhaps not surprisingly, police departments routinely violate these sealing statutes, retaining and using materials that are supposed to be removed from a person's criminal records (e.g., booking photographs used for line-ups in other cases) and disclosing information that is supposed to be sealed (e.g., information about the alleged crime for which the person was accused but not convicted).  The reported case law is replete with cases involving such violations.  What can a person do if this happens?

Unfortunately, the sealing statutes themselves do not contain any built-in enforcement mechanisms; they do not expressly authorize persons whose sealed criminal records have been used or disclosed improperly to file lawsuits against the police.  Until recently, New York state courts have refused to allow these victims to use other legal theories to enforce their rights under the statute.  The upshot is that for many years police violations of the sealing statutes have gone unpunished by the courts.

 In 2012, in a breakthrough decision, the New York Appellate Division, First Department (the appeals court for New York County and the Bronx), ruled that the sealing statutes contain an implied right of action, which permits persons whose sealed criminal records have been used or disclosed improperly to bring a civil action in court "to seek enforcement of the statute."  See Lino v. City of New York, 101 A.D.3d 552, 958 N.Y.S.2d 11 (1st Dept, Dec. 20, 2012).  The Lino lawsuit was brought by the New York ACLU to challenge the NYPD's practice of including in the city's "stop-and-frisk" database information about persons whose criminal records should have been sealed.

The Lino decision is a very important civil rights ruling, which finally puts the force of law behind the protections afforded by the sealing statutes to persons who have been cleared of criminal wrongdoing.  Although the First Department's jurisdiction formally extends to New York County and the Bronx, its ruling in Lino is binding on all lower courts in the state, unless and until another appeals court issues a ruling disagreeing with the decision.

It is important to understand that the Lino decision creates a state law cause of action to redress violations of the sealing statutes.  As such, before a plaintiff can sue the NYPD (or another police department) for violating his rights under the sealing statutes, he first must file a notice of claim with the appropriate government agency and allow the agency to investigate his claim before he can file a lawsuit in court.

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Q: Is it legal to videotape the police in New York?

The quick answer is yes, provided that the person does not improperly interfere with police work.  But let me explore this important issue in somewhat more detail.

In recent years there have been numerous stories in the news and on the internet about private citizens who are arrested by the police for recording them on cell phones or hand-held videocameras.  Perhaps the most notorious incident occurred in May of last year, when homeowner Emily Good was arrested by Rochester police while standing in her yard and videotaping police officers who were performing a traffic stop in front of her house.

A self-described activist, Good was concerned that the police officers were racially profiling the driver of the vehicle.   When one of the officers asked Good what she was doing, Good replied, “I’m just recording what you’re doing; it’s my right.”  The officer then told Good that “we don’t feel safe with you standing right behind us while we’re doing a traffic stop” and ordered her to go inside her house.  When Good insisted on her right to stand in her yard, the officer “warned” her, “you’re going to be under arrest.”  When Good did not move, the obviously exasperated officer stated, “you know what, you’re going to go to jail.”  Good was arrested, handcuffed, and led away in tears.  She was charged with the crime of obstructing governmental administration (more on this below).  After the video of the incident was posted on YouTube, the charge against her was dismissed.

Was it legal for Good to videotape the police officers while standing in her own front yard?  Unquestionably, yes.

The first step in analyzing this issue is examining the state's wiretapping statute.  Wiretapping statutes don't apply only to "wiretapping" per se (surreptitiously recording a telephone conversation), but generally govern when one person may make a voice (audio) recording of another person without that other person's consent.  Most states, including New York, only require that one party to a conversation consent to the recording.  In other words, if Joe is having a conversation with Jane (whether in person, by telephone, etc.) and he decides to record the conversation without Jane knowing, that is legal in New York and most other states.  In Emily Good's situation, therefore, she was not violating New York's wiretapping statute when she videotaped the police officers (including recording their voices) outside her house.

However, some states have so-called "dual consent" wiretapping laws, which require both parties to a conversation to agree to the recording.  In those states (which include, at last count, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington), if Joe recorded his conversation with Jane without her knowing (i.e., without her consent), he would be committing a crime.

But even in states with dual consent laws, it still is (or should be) legal for a private citizen to videotape police officers going about their official duties.  This conduct is protected by the First Amendment.

This was the question presented in an important decision issued last August by the U.S. Court of Appeals for the First Circuit, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), a civil rights lawsuit brought under 42 U.S.C. § 1983.  The plaintiff in Glik had been arrested and charged with violating the Massachusetts wiretapping statute “for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common.”  He contended, inter alia, that his arrest violated his rights under the First Amendment.  The First Circuit agreed, finding “unambiguously” that there is “a constitutionally protected right to videotape police carrying out their duties in public."  This ruling effectively immunizes such conduct not only in Massachusetts, but also in Maine, New Hampshire, Rhode Island, and Puerto Rico (the extent of the First Circuit's jurisdiction).

More recently, the U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled in ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012), that the Illinois wiretapping statute "likely violates the First Amendment's free-speech and free-press guarantees" when applied to private citizens who videotape police officers performing their duties in public.  The U.S. Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia) likewise has declared, in Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), that there is "a First Amendment right, subject to reasonable time, manner, and place restrictions, to photograph or videotape police conduct."

Although not every jurisdiction is covered by one of these rulings, in my opinion the clear weight of judicial authority holds -- quite properly -- that the First Amendment protects a person's right to videotape the police.

Of course, when police officers arrest someone for videotaping them, they usually don't give that as the reason.  Instead, they charge the person with some other crime, most commonly obstructing governmental administration (as in Emily Good's case) or disorderly conduct.

In New York, the offense of obstructing governmental administration (P.L. § 195.05) provides:

A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . .

To be guilty of obstructing governmental administration, therefore, a person must physically interfere with police activity; videotaping police officers in an unobtrusive manner does not violate the statute.  Emily Good, obviously, was not guilty of this offense.  She was wrongly, indeed maliciously, arrested by the police for videotaping them.  I assume she received some kind of civil settlement.

In New York, the offense of disorderly conduct (P.L. 240.20) provides:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a  risk thereof:  (1) He engages in fighting or in violent, tumultuous or threatening behavior; or (2) He makes unreasonable noise; or (3) In a public place, he uses abusive or obscene language, or makes an obscene gesture; or (4) Without lawful authority, he disturbs any lawful assembly or meeting of persons; or (5) He obstructs vehicular or pedestrian traffic; or (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or (7) He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Although police officers dish out "dis con" charges like they're candy, the statute itself is fairly narrow.  It requires showing both "intent" to cause "public inconvenience, annoyance or alarm" and also a specific form of prohibited disruptive conduct -- none of which applies to unobtrusively videotaping police officers performing their duties in public.

In sum, videotaping police officers in New York is legal, constitutionally protected conduct.  A person who is arrested for engaging in this conduct may have a claim for false arrest and should consult a civil rights attorney immediately.

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