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CIVIL RIGHTS

FREQUENTLY ASKED QUESTIONS

 

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."  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.

 

What is the meaning of “false arrest"?

 

A false arrest occurs when a person’s liberty is restrained against his or her will and without legal justification. 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 only if they have probable cause (i.e., 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 or she was falsely arrested.

 

What is the meaning of “false imprisonment”?

 

A false imprisonment occurs when a person is confined against his or 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 “malicious prosecution”?

 

Under both state and federal law, you have the right to be free from a criminal prosecution for a crime unless the law enforcement or government official who causes the charge to be made against you has probable cause to believe you committed each and every crime for which you are being charged. A malicious prosecution claim is typically brought against police officers who either falsify evidence against the accused and/or provide false evidence to prosecutors. Malicious prosecution is not restricted to criminal cases, but any criminal or civil case where you are falsely prosecuted or sued. To have a malicious prosecution claim, you generally must first win your criminal case either through a dismissal by the Judge or the Grand Jury or being found not guilty by a jury. An example of a criminal malicious prosecution case would be the police arresting and prosecuting you for a theft, even though none of the evidence pointed to you. A civil example could be a state’s child protective services taking away custody of someone’s children without any evidence that they are unfit parents.

 

What rights do prison inmates have?

 

The United States Constitution recognizes and declares that each person is endowed with certain rights which can never be taken away from them. This extends even to people who have committed crimes serious enough to warrant a prison sentence. Consequently, there are a number of legal protections available to prison inmates, even if those protections are not as strong as those for people who are not convicted felons. Every inmate is entitled to receive medical care and mental health treatment. These treatments are only required to be “adequate,” not the best available or even the standard treatment for those outside of incarceration. Every inmate has the right to be free under the Eighth Amendment from inhumane treatment or anything that could be considered “cruel and unusual” punishment. Every inmate can complain about prison conditions and have a right of access to the courts to air these complaints. Disabled inmates are entitled to assert their rights under the Americans with Disabilities Act to ensure that they are allowed access to prison programs/ facilities that they are qualified and able to participate in. Under the Prison Litigation Reform Act (PLRA), inmates must exhaust internal prison grievance procedures before they file suit in federal court. Additionally, inmates cannot file a claim for mental or emotional injury unless they can show that they also suffered a physical injury. Inmates also risk losing credit for good time if a judge decides that a lawsuit was filed for the purpose of harassment, that the inmate lied, or that the inmate presented false information.

  

What is the meaning of the “Due Process Clause”?

 

Due process is a complicated and often misunderstood legal concept. Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. When a government harms a person without strictly following legal requirements, this constitutes a “Due Process Clause” violation. First, the clause provides for procedural due process which requires the government to follow certain procedures before it deprives a person of life, liberty, or property. Second, the clause establishes substantive due process under which courts determine whether the government has sufficient justification for its actions. An example involving the deprivation of property would be if an individual had a contract to work for the state of New York for 1 year, procedural due process concerns must be met for early termination, as there is a property interest in the entitlements stemming from the contract.

  

What is the meaning of the “Equal Protection Clause”?

 

The Equal Protection Clause prohibits the government and its agencies from denying any person the equal protection of the law. In other words, the government must treat a person in the same manner as other people in similar conditions and circumstances. A violation would occur, for example, if the government or its agencies prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The clause is not intended to provide equality among individuals or classes but only equal application of the law. The result of a law, therefore, is not relevant so long as there is no discrimination in its application. Generally, the question of whether the Equal Protection Clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right.

 

What is the meaning of “First Amendment Retaliation”?

 

The First Amendment protects the right to be free from government abridgment of speech. When the government, including a government employer, takes an adverse action against a citizen in retaliation for exercising their constitutional right to freedom of speech, this constitutes a “First Amendment Retaliation” violation.  First Amendment retaliation claims have been recognized where: a tavern owner and its manager were harassed following complaints they made to city officials, including harassment by prolonged and conspicuous presence, affecting business volume, by city’s law enforcement; a bungalow owner’s building permit was revoked immediately after the town learned that the owner would not dismiss his federal lawsuit against it; a civil-engineering firm, which specializes in designing and installing alternative subsurface sewage disposal systems, criticized the Department of Sewage Disposal Management and then license revocation proceedings were initiated against it; after homeowners petitioned the city council (and distributes fliers and letters) to complain about fencing and tree requirements, the city’s building inspectors refused to grant the homeowners an extension of their building permit and failed to provide the plaintiffs with notice that their permit was about to expire even though such notice was routinely given to other similarly-situated property owners; a tow-truck operator criticized the police department, which then removed his towing company from the department’s approved towing list.

  

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 federal law is 3 years.  To bring claims against state or local officials 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 limitation 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 a “notice of claim”?

 

A “notice of claim” is a special form that must be submitted to the municipality (or sometimes the agency) that employs the public official who violated a person’s rights. It is a requirement of state law, not federal law, and it only applies to claims against government agents, not private citizens.  For example, to sue a New York City police officer for excessive force under state law, a person first must file a notice of claim with the New York City Comptroller. Importantly, the notice of claim must be filed (either in person or by certified mail) within 90 days of the incident, must contain a complete description of the incident, and must be signed and notarized by the complaining party.  The city then has the right to investigate the claim, including taking the complaining party’s deposition (referred to as a “50-h hearing”), before any lawsuit may be filed. 

Contact the THE WOODWORTH LAW FIRM  today at:

                                    

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