False Arrest Claims under 42 USC § 1983 - False Arrest Claims under Florida Law - Juvenile Falsely Arrested in Clay County

How do you prove a claim of False Arrest in Florida?

How do you prove a claim of False Arrest in Florida?

An innocent juvenile spent 35 days in the Clay County Jail after three deputies failed check that they had the correct suspect based on a photo lineup. The correct suspect was another student at the high school with the same name. The three deputies involved have been disciplined.  According to published reports, "The mistake wasn't discovered until the teen received court documents detailing the charges against him." Reports also indicate, "Authorities say investigators failed to confirm their suspect's identity with a photo lineup. They actually had been seeking another student at the same high school with the same name."

False Arrest Claims under 42 USC § 1983

The University of Chicago Law review notes, "Under § 1983, citizens may seek redress for violations of their constitutional rights by state or local officials,9 including police officers. The statute guarantees that “[e]very person who, under color of any statute, ordinance, regulation, custom or usage, of any State or

Territory . . . subjects . . . any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” A § 1983 action has two essential elements: that the alleged injury was committed by a person acting under color of state law, and that this conduct deprived the person of a right “secured by the Constitution and the laws” of the United States."

False Arrest Claims under Florida Law

The University of Chicago Law review also notes "the only difference between the federal § 1983 claim and the pendent state claim was the placement of the burden of proof—under Florida law, probable cause was an affirmative defense, while in the Eleventh Circuit, the “plaintiffs had the burden of demonstrating the absence of probable cause in order to succeed in their § 1983 claim.”"

If you have been the victim of a false arrest, please contact our office for a consultation.

Authored by: Jennifer Salter, Esquire
For the full report, please see: http://www.wcjb.com/local-news-state-news/2014/02/teen-spends-35-days-jail-after-mistaken-arrest

Source: http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/73.1/73_1_Newman.pdf

Mugged by Mugshots No More - Update - Mugshot Websites Under Fire in Florida.

Mugged by Mugshots No More - Update

UPDATE - February 20, 2014 - Florida is considering action in this area but Kentucky passed two bills to help people put their criminal records behind them. The new law would make it a felony to publish someone's jail mugshot to a website and then demand money for the photo's removal.

Pinellas Sheriff Bob Gualtiere could not have said it better when he equated web site postings of mug shots and then the charge of a removal fee as extortion.  Sites like www.mugshots.com have proliferated with an extortionist entrepreneurial spirit.  These sites feed on peoples’ misery whether deserved or not and spackle images of people’s lowest moments, their arrests, all over the internet for crude entertainment.  

The sheriff recognized that this legitimate public information, photographs and information about folks booked at the jail was being exploited for non-public use in a mean spirited, financially exploitive manner.  As the link below reflects he is taking steps to limit abuse.  Most of the time my office speaks out regarding law enforcement we do so to point out abuse and mistakes.  

It is most enjoyable to see this sheriff serving the public’s broad interests through such a thoughtful change.  Keep up the good work Sheriff Gualtiere.

http://tbo.com/pinellas-county/pinellas-sheriff-targeting-websites-limits-access-to-mug-shots-20140109/

 

Top Three Things That Anger Florida Prosecutors

Top Three Things That Anger Prosecutors

Top Three Things That Anger Prosecutors

Prosecutors have great discretion when it comes to filing, adding, reducing, or even dismissing criminal charges. This prosecutorial discretion gives prosecutors the ability to negotiate with a vast amount of tools.  The negotiated plea offer therefore is one of the most prevalent and important tools to the State. We know that a defendant never wants a prosecutor to begin negotiations with “We want the maximum sentence!” So here is a list of the top three things that anger prosecutors and what we can do to help:

1. Serious Charge

The defendant who is charged with a “serious” offense starts off on the wrong side of the prosecutor.  Most notably, cases that involve minors as victims, death or serious bodily injury to others, and high levels of fraud or theft have prosecutors seeing red! Because of the serious nature of these charges prosecutors will often typecast a defendant and ignore anything remotely positive or good about them.  

What we can do

Our firm always approaches each case with great attention to detail. We will always look for ways to dismiss the charges. Grounds for dismissal can include: the statute of limitations, immunity, double jeopardy, and the State cannot prove the elements necessary to sustain a charge.

If the charges cannot be dismissed our firm will look for ways the charge can be reduced to a lesser included offense through negotiations. If negotiations fail our firm will be ready to fight for you at trial with various trial defenses and strategies.

2. New Charges while a case is pending

No matter the severity of a crime, prosecutors get downright Hulk like if a defendant is charged with a new crime when they are currently on pre-trial release awaiting the resolution of a pending case. Prosecutors have the ability to file a motion to revoke bond and will usually increase any previous offer because of the new charges.

What we can do

It is possible to do a motion to set bond and argue that the new arrest was improper. Even if bond is denied our firm will evaluate all potential defenses to see if the new case can be dismissed. We may also negotiate a wrap offer with the State that may take into account all the charges so that the defendant does not get hit with multiple sentences.

3. Failures to Appear

There have been times when I have shown up to court but my client did not. This relatively minor act makes prosecutors blood boil. Prosecutors can charge the defendant with a separate crime of “Failure to Appear” and will undoubtedly use the threat of filing additional charges as a way to harden any current offer. So an initial offer of 12 months probation could turn into 20 days in county jail followed by 12 months probation. If you have multiple failures to appear you can be sure the prosecutor will enter into a mad frenzy. (Prosecutor Smash!)

What we can do

Failures to appear can often be the result of bad luck, such as a car breaking down on the way to court. Our firm can stand up for you in court and explain how your absence was not intentional or willful.  If the judge issues a warrant for your arrest, a capias, we can file a motion to withdraw the warrant in order for you to avoid a subsequent arrest.

Call us so we can begin helping you today.

Authored by: Robson Powers, Esquire

Fourth Amendment Supreme Court Warrantless Entries into the Home

Fourth Amendment

Tampa Criminal Attorney notes, On Monday, November 4, 2013, the Supreme Court laid down a decree that further minimizes a person’s Fourth Amendment right to be free from warrantless searches and seizures by law enforcement. The case in question is Stanton v. Sims. While the case was a civil claim for damages under 42 U.S.C. § 1983, Civil Rights, it will have ramifications in criminal cases as well.

The circumstances surrounding Stanton v. Sims are that Officer Mike Stanton responded to a call regarding an unknown disturbance involving a person with a baseball bat. As Stanton neared the area where the disturbance had been reported, three men were walking in the street. The neighborhood had a reputation for “violence associated with the area gangs.” Two of the men ran upon seeing Stanton’s marked police vehicle. The third man, Nicholas Patrick, crossed in front of the marked vehicle, and he moved quickly towards a residence. The residence was owned by the Plaintiff, Drendolyn Sims, which it does not appear Stanton knew.

Stanton did not see Patrick with a baseball bat or any other weapon, but wanted to detain him because of Patrick’s suspicious behavior and to investigate the disturbance. Stanton identified himself as police and ordered Patrick to stop, but Patrick did not. Patrick did appear to hear the order but ignored Stanton’s lawful command and went through a gate of a fence. The gate closed and Stanton kicked open the gate to continue pursuit of Patrick. However, Ms. Sims was behind the gate when it flew open. The swinging gate struck Ms. Sims, cut her forehead and injured her shoulder. Stanton felt that Patrick committed a jailable misdemeanor by disobeying Stanton’s order to stop.

Sims filed suit against Stanton in Federal District Court, alleging that Stanton unreasonably searched her home without a warrant in violation of the Fourth Amendment. On appeal, the Supreme Court disagreed. The Court’s ruling suggests that when an officer is in “hot pursuit” of somebody who allegedly commits even a minor offense, a warrantless entry into the home is not a violation of the Fourth Amendment and did not subject Stanton to personal liability to damages here. 

The Supreme Court had previously found, where an alleged felony occurred, and the officer was in hot pursuit, a warrantless entry into the home does not violate the Fourth Amendment. The ruling here seems to say hot pursuit of alleged offender trumps the sacred boundaries of a person’s home. This case reveals a distancing from the sanctity of the home and seems at odds with the 2013 case of Florida v. Jardines (front porch sniff by drug dog deemed a violation of the Fourth Amendment) which only seemed to bolster the importance of this core constitutional right.

Guest Author Adam Dinsbier

• W.F. Casey Ebsary, Jr.

Veterans Court in Hillsborough - PTSD

VETERANS COURT IN HILLSBOROUGH AIMS TO ADDRESS PTSD ISSUES

As of October 1st, there is a new court division in Hillsborough County- Division V. This court division will allow honorably discharged veterans to “get qualifying misdemeanor charges dismissed if they successfully complete a treatment and assessment program.” The Tampa Bay Times reported on this court back in August which can be read here: http://www.tampabay.com/news/courts/criminal/veterans-court-to-be-launched-in-hillsborough/2137037#

Veterans Court
PTSD

To be eligible to have a case dismissed, the veteran must volunteer to enter the program and also be eligible to receive VA benefits. After meeting the eligibility requirements, the veteran must successfully complete a treatment program tailored to the veteran’s unique situation, such as substance counseling and other programs. Once admitted to the court, the veteran must abide by the following conditions: he/she must complete the treatment, must not be arrested on any new charges and must appear at all court hearings. Once these conditions are met, the charge will be dismissed.

Judge Weis, who is the presiding judge of this new court, said “A veterans court is necessary and appropriate because it is designed to identify and treat a unique class of individuals suffering from unique issues stemming from a unique causation for which unique resources are readily available for treatment." The formation of such a division is a right step toward social justice for folks who have sacrificed and served for our country.