Can I Sue for Retaliatory Arrest?

File under: Police Misconduct, Civil Rights, First Amendment, Retaliatory Arrest

Threading the Finest Needle: Retaliatory Arrest Claims after Nieves v. Bartlett.

As part of our civil rights and police misconduct practice, we regularly field phone calls that – in addition to whatever other physical or legal indignities were visited upon the caller by the police – feature some variation of the following refrain: “I wasn’t even doing anything illegal, the officer just arrested me because he was upset…”

The technical name for this is a “retaliatory arrest”; the usual story involving the citizen engaging in some perfectly legal, usually core-First-Amendment activity – perhaps videotaping an officer conducting an arrest of a third party, or offering a colorful assessment of the officer’s intelligence and physical attractiveness – that has sufficiently provoked the officer and produced an arrest (at least) as a response. The violation of the civil rights occurs because the arrest isn’t prompted by criminal behavior, but as a means of evening the score for the citizen exercising a right guaranteed to them under the law, albeit in a fashion the officer finds obnoxious. This sort of thing, unfortunately, comes up routinely. And, despite the fact that it seems straightforward enough in theory, in practice this variety of regrettable police behavior presents a difficult basis on which to build a successful lawsuit. Also – because there is rarely good news where police misconduct litigation and the Supreme Court are concerned – this already-bad situation was recently made worse by our nation’s high court.

On May 28th, The Supreme Court published its decision in Nieves v. Bartlett, concerning the ability to bring federal civil rights law suits in the context of 1st. Amendment retaliatory arrest cases. The facts – which occur against the backdrop of a week-long winter festival in the remote Alaskan wilderness known for “extreme sports and extreme alcohol consumption” and involve an arguable lack of judgment on the part of all involved parties– are summarized nicely here. While Mr. Bartlett, perhaps, doesn’t make for the most sympathetic plaintiff, look past that to the worrying upshot of the case: that retaliatory arrest suits will almost always fail where the police can point to probable cause for the arrest. Nieves puts the burden on the Plaintiff to plead and prove a lack of probable cause behind the arrest -relying solely on objective factors (no relying on subjective indicators like the arresting officer’s own snarky remarks). The Court’s sole, narrow exception to this rule is for arrests involving trivial, rarely enforced offenses (e.g., jaywalking) where the pretextual basis for the arrest is more or less clear on the face of the charge brought.

Put in layman’s terms, this means that – at some point between conducting the retaliatory arrest and writing up the official police report – the arresting officer needs only dream up a plausible charge, and plausible explanation supporting it, to scuttle a claim. How hard, in practice, is that for an officer to do? Well, Lavrenty Beria – Stalin’s chief of secret police – was allegedly fond of saying “show me the man and I’ll show you the crime.” It’s not as though the officer suffers from a shortage of criminal offenses from which to choose, and the standard – probable cause – is famously low. As a related question, how worrisome is this development – if it was already hard to hold police accountable on this theory of culpability, how much has the needle really moved? A variety of commentators from around the political spectrum agree it’s pretty troublesome and represent a progression from “bad” to “much worse.” It’s also worth echoing the concerns that this decision potentially reaches and unavoidably chills desirable public interaction with / oversight of police: that perhaps it’s one thing when the defendant comes to grief as a result of drunkenly advising underage drinkers of their right to remain silent to an officer’s consternation, but it’s quite another where a concerned citizen is now without civil remedy if they are arrested for “trespassing” while trying to capture video of officers employing excessive force in the arrest of a third party. Even Justice Gorsuch, never likely to be accused of being a civil rights firebrand, expressed queasiness in his concurrence that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.” Strong stuff indeed from a Justice known for being an otherwise-thuddingly-dull writer.

So, what should you do if this happens to you? Is it still worth calling an attorney? Perhaps. Set your expectations realistically, but don’t assume all hope is lost – the hole in the needle has gotten significantly smaller, but it still may be possible to thread. A clever officer will appreciate the necessity of always finding a plausible charge to offer up in their police report, as a matter of insurance. But the facts still matter, and with body-worn cameras becoming more common the police report may not be the final word on what actually happened. Attorneys experienced in civil rights litigation – obligatory plug: the attorneys of Hedges & Tumposky all meet this description – who stay current on the developments in the field may be able to navigate the hurdles thrown up by Nieves and preserve your claim.

Drug and Gun Cases Compromised After Video Reveals Inconsistent Testimony by NH State Trooper

In April of 2018, forty five people were charged in a fentanyl-trafficking ring in the United States District Court for the District of New Hampshire, marking it the largest fentanyl bust in New Hampshire history. Paul Aaron was one of those people. When Aaron was arrested, officers seized a kilogram of fentanyl and a bulletproof vest. After his arrest, a search warrant was issued for his house. During that search, another kilogram of fentanyl was found, along with money and guns.

A New Hampshire State Trooper who participated in the arrest wrote in his report that Aaron was given a shopping bag during a drug deal, which prompted their decision to arrest him. The Trooper further wrote that when he tried to stop Aaron, he tried to flee into his apartment and the Trooper had to tackle him to place him under arrest. Several Lowell, MA police detectives wrote similar statements in reports and in the affidavit in support of the application for a search warrant on Aaron’s apartment.

Yet during a hearing on a motion to suppress in federal court, defense counsel played video surveillance which directly contradicted the Trooper’s and detectives’ accounts. The video showed that Aaron had the shopping bag all along and was not given it during a drug deal. The video further showed that Aaron did not attempt to flee or resist after the Trooper tried to stop him. Due to these glaring inconsistencies, the court suppressed all of the evidence seized during Aaron’s arrest. Since those inconsistencies also contributed to the granting of the search warrant, the judge suppressed all of the evidence found in Aaron’s apartment as well. In total, this misconduct resulted in the suppression of 2 kilograms of fentanyl, firearms, and other evidence.

That was only the beginning of the fallout. The Lowell Police Department conducted an internal investigation which resulted in disciplinary action against three detectives, a Lieutenant, and a Sergeant. During the pendency of that investigation, several detectives were not allowed to testify in court, resulting in at least fifteen cases being dismissed.

This scandal highlights the importance of having a skilled criminal defense attorney on your side to investigate your case. Had Aaron’s case not been adequately investigated, the evidence would never have been suppressed, and the Lowell cases would have continued to be prosecuted. Just like any other witness, sometimes the police take liberties with the facts in order to make charges stick. Aggressive investigation is required to expose these unlawful practices.

Hedges & Tumposky, LLP is highly experienced in investigating and defending a wide variety of criminal cases. We are no stranger to investigating the police. When we discover police misconduct, we have the experience and dedication to use it to our client’s benefit in a criminal trial and then file suit and litigate vigorously in a civil proceeding. Whether you have been charged with a crime, and/or believe you may be a victim of police misconduct, call Hedges & Tumposky, LLP today for a free consultation.

Has Police Misconduct Negatively Affected Your Life?

There is no doubt that law enforcement officers and police personnel hold a lot of power in the communities they serve. They are the people who citizens call to help them in times of need. They are the first responders at emergency situations. They put their life on the line every time they report for duty.

As Voltaire once said, “with great power comes great responsibility.” As a police officer, there is oftentimes a fine line between what is acceptable behavior and what is considered misconduct on the job.

For instance, while it is acceptable for law enforcement officers to use some amount of force to detain a suspect, using brutality or excessive force may fall under the category of police misconduct.

Other examples of police misconduct include discrimination, violating the First Amendment rights of citizens, wrongful conviction, false arrest, and conducting illegal unwarranted searches of persons or property, harassment, or other unacceptable or abusive behaviors.

What to Do If You Suspect You’re a Victim of Police Misconduct

If you or someone you love was a victim of police misconduct or brutality in the Boston area, discussing your situation with a lawyer with expertise in this field of the law is imperative to protecting your rights and the safety of others.

Depending on the severity of the misconduct and any losses this police misconduct may have caused, you may qualify for compensation for damages.

A skilled legal team who understands the regulations surrounding police misconduct is in a position to help individuals or families who have suffered at the hands of an unwieldy police force. After telling them your side of the story, they can advise whether they feel you have a strong case that is likely to uphold scrutiny in the justice system.

Once they have established the validity of a potential police misconduct case, your lawyer will pursue every avenue available to prove your case and seek justice for you.

If you were seriously injured during the confrontation, this could include damages for medical bills, lost wages, and pain and suffering.

If you think that you are a victim of police misconduct, Contact the offices of Hedges & Tumposky to discuss your case today. We are here to help!

Do Not Face Trial without a Skilled Criminal Attorney on Your Side

If you have been named as a suspect in a crime or you have been arrested for criminal activity in the Boston area, do not overlook the importance of having a skilled criminal attorney on your side.

Skilled Criminal Attorneys who are hired to defend your case are there to help “suspects” get the best possible outcome for their pending case, whether it be establishing the innocence of their client, securing a plea agreement, or representing clients in appeals and post-conviction legal proceedings.

Know Your Rights!

Every person, regardless of innocence or guilt, should understand their rights and take full advantage of them if they are being detained.

If you are being held in connection with an allegation of criminal activity, your Miranda Rights uphold your right to remain silent. This right is one that you should take advantage of. Since anything that you say “can and will be used against you” in a Boston area court of law, it is always smarter to say nothing until you have an experienced criminal lawyer there to offer guidance and sound legal counsel based on the specifics of your case.

The Number of Plea Agreements Exceed Criminal Trials

In the Boston area, less than 10% of criminal cases ever go to trial. The other 90% or more are settled by coming to a Plea Agreement. A plea agreement typically requires the defendant in the case to admit to sufficient facts or plead guilty to certain charges. As a part of the plea agreement, other charges may be dropped or treated with leniency.

Defendants who have a criminal attorney on their side are there to assure that they are fairly represented in these potentially life altering proceedings. Criminal attorneys investigate your case and know the legal precedents to help defend you at trial or, if appropriate, work out a favorable resolution.

If you or a loved one is facing charges for alleged criminal activity in the Boston area, call the offices of Hedges & Tumposky to speak with an attorney today.

Our firm delivers results!

Tom Brady’s prospects on NFL’s appeal from Deflategate ruling

When the Patriots beat the Indianapolis Colts 45-7 in the AFC Championship game on Jan. 18, the last thing on anyone’s mind would have been the intrigue simmering behind the scenes involving the allegations that the Patriots had used underinflated footballs to gain a competitive advantage. The incident, now known as “deflategate” has caused seismic tremors throughout the football community. Even more implausible would have been the fact that after a mind-numbing odyssey of NFL disciplinary hearings and investigations culminating in the “Wells report”, the NFL concluded that it was “more probable than not” that Patriots staffers intentionally deflated footballs before the AFC Championship Game. Further, the report found that Patriots Quarterback Tom Brady was “at least generally aware” of such activity. The consequences of this alleged malfeasance?: the NFL levied punishments against the Patriots to the tune of $1 million and revocation of the team’s first-round selection in the 2016 NFL draft and the fourth-round selection in the 2017 draft. Brady was also suspended for the first four games of the 2015 season.

Perhaps even more astonishing is the fact that nearly ten months later, the matter of Tom Brady, the underinflated balls, and the NFL’s decisions would be winding its way through the Federal Court system. In September, U.S. District Court Judge Richard Berman vacated Roger Goodell’s decision to uphold Tom Brady’s four-game suspension. The NFL, subsequently (and not surprisingly) appealed the decision to the 2nd Circuit U.S. Court of Appeals.

In its opening brief filed with the 2nd Circuit, the NFL takes the position that Judge Berman “vastly exceeded” his authority under the Labor Management Relations Act and “decades of precedent” in vacating the league’s discipline of Brady. Further, the NFL’s brief asserts that the act of disciplining Brady for what it concluded was “egregious conduct” did not involve conduct such as “fraud, dishonesty, or complete departure from the CBA—required for a federal court to take the drastic measure of disturbing a labor arbitration award.” Thus, the league posits its discipline was “eminently fair and reasonable given the egregious conduct involved.” However, the league points out another layer of error in the lower Court’s decision in that it was not the NFL’s burden to persuade the district court that “the punishment was optimal or even fair. The district court’s evident disagreement with the Commissioner’s substantive rulings did not empower it to overturn his award.”
Given the positions taken in the NFL’s opening brief, the appellate court will be tasked with sorting out the question of whether this case qualifies as one of the circumstances which deviate from the “longstanding Supreme Court and Second Circuit precedent,” requiring courts to uphold a labor arbitration award if the arbitrator “offer[s] even a barely colorable justification for the outcome reached.” How the NFLPA on behalf of Brady attempts to frame the lower court decision will likely shed much more light on the prospects of the decision being upheld when its brief is filed on December 7. As the overwhelming body of precedent stands, arbitration awards are general granted wide deference, and the lower court largely ignored this convention. If the 2nd Circuit approaches the case strictly from the perspective of sorting out whether the NFL deviated from the CBA in some extreme manner, existing precedent could weigh heavily against the NFLPA.

Why Lawsuits against Uber for Driver Misconduct Will Fail

Uber has proven to be disruptive in their service delivery model by upending the time-honored business model of for-hire transportation. Equal to the fervor of its disruptive business model has been the pushback in the form of litigation against the company. Reports show that, in the U.S. alone, Uber has been involved in at least 173 lawsuits since October 2012. Some of these suits take aim at the legality of its business model as the traditional taxi industry and local governments have attempted to block Uber’s entrance into some markets. Other cases have been filed by Uber drivers challenging their status as contractors, garden-variety personal injury claims arising from car accidents and an emerging category of suits alleging Uber’s negligence in failing to scrutinize its drivers’ backgrounds. Notable among this driver misconduct litigation is a suit, filed October 5 in the US District Court in San Francisco seeking redress from Uber on behalf of two “Jane Doe” plaintiffs who allege their Uber drivers sexually assaulted them. The lawsuit alleges that Uber’s “negligence,” “fraud” and “misleading statements” led to the sexual assaults of the two women.

The suit claims Uber has marketed its ride-sharing service to young women who have been drinking, thereby exposing them to unnecessary risk from Uber drivers who are not subject to adequate background checks. The plaintiffs are asking the court to order Uber to boost its safety standards and award monetary damages. Given these allegations, the claims against Uber largely depend on establishing that the practices Uber employs to screen its drivers, as well as its passenger safety measures, deviated from the reasonable standard of care employed in similar industries. The problem with this line of reasoning rests on the question of whether Uber should exercise the same duty of care toward passengers as other common carriers such as bus lines or taxi companies, or is Uber an entirely different creature whose service model does not carry the same obligations of care toward passengers found in the traditional livery industry. After all, Uber touts itself as a ride-sharing platform, in effect a facilitator of ride sharing between participating drivers and patrons through the vehicle of its mobile app.

Given these differences, the arguments made by the plaintiffs will likely employ novel applications of the law and their success will depend on the court’s receptiveness to these new arguments. The court’s willingness to translate traditional principles regarding the standard of care owed to passengers by common carriers to Uber may be a benefit to the Plaintiffs in the “Jane Does” case. On the other hand, traditional notions of agency law would suggest that Uber is not responsible for the acts if the drivers are, in fact, independent contractors. Whatever happens hear could have tremendous precedential value for some of the other categories of suits that Uber is facing.

Owen Labrie Sex Assault Trial Shows the Power of Social Media for Both the Prosecution and the Defense

Unless you have been on a remote Pacific island, incommunicado, over the last few months, you have likely heard of the case involving Owen Labrie, a 19-year-old, alumnus of the elite St. Paul’s School, in New Hampshire, who stood accused of sexually assaulting a 15-year-old student when Labrie was an 18-year-old senior at the school.
At the conclusion of the August trial, the jury convicted Labrie of five counts in connection with the alleged incident, but it acquitted him of the most serious charges. In the end, Labrie was found guilty of three counts of misdemeanor sexual assault, using a computer to lure a minor for sex, and child endangerment. With its verdict, the jury appeared to believe the claim that intercourse occurred, but it dismissed the accuser’s and prosecution’s claim that it was against the alleged victim’s will.

Social Media Sites
Most significant about this case was the fact, that during the investigation leading up to the case, police obtained 12,000 pages of Facebook data. From this horde of evidence, jurors were presented with a perplexing and often contradictory picture from Facebook messages exchanged between the two parties and posted publicly on the platform. Given the disputed facts surrounding the issue of consent, this evidence provided a window into some of the nuances of an already tangled mess of facts and in other instances created even more confusion.

Suffice to say, this was not a clear case of predator and victim. As such, the defense and prosecution shoehorned their arguments to suit these social media exchanges. The defense presented Labrie as a boy playing up his sexual exploits to his friends by bragging that he had intercourse with the girl, in some misguided effort to impress them. Also puzzling, and damaging, was the fact he admitted to deleting 119 Facebook messages, including one in which he boasted that he “pulled every trick in the book” to have sex with the alleged victim.

Further evidence was taken from Social media exchanges made at Facebook between Labrie and the alleged victim before the assault which were suggested to be saccharine exchanges between a newly-minted teenage couple. From these conversations, the alleged victim was presented as someone who seemed to a willing participant at first, but was now merely putting up a façade to cope with her regrets and the fallout from the encounter. The alleged victim stated she kept the Facebook conversation light because she was trying to find out whether he had worn a condom and, according to the prosecution, was motivated by her desire not to offend Labrie.

According to prosecution expert Dr. Carlos Cuevas, this response is consistent with sexual assault in that, “A lot of people do think if someone is sexually assaulted, here’s what it should look like, there’s a certain reaction…Expectations of what survivors should or shouldn’t look like or should or shouldn’t do miss the true nature of the impact of sexual assault.” In the end, the prosecution presented the narrative that the content of her exchanges with Labrie on Facebook was influenced by not wanting to rock the boat or offend anyone.
Ultimately social media evidence did little to bolster either case definitively. Rather this evidence may have generated doubt among the jury that likely precipitated the acquittals on the most serious charges, yet also led to convictions on some of the lesser charges.

SJC Confirms in Augustine Case That Police Need a Warrant to Obtain Cell Site Location Information (“CSLI”)

Updated May, 2019

On August 18, 2015, the Supreme Judicial Court of Massachusetts overturned an order to suppress “cell site location information” (CSLI)  obtained by the police in a murder investigation. This ruling comes as the most recent decision in an ongoing review of the Fourth Amendment’s privacy doctrine in the context of searches conducted on CSLI, which can be used to retrace a cell phone user’s movements over any given period of time.

The August 18, 2015 decision referred to as Augustine II is the culmination of nearly four years of litigation attempting to define the outer boundaries of the Fourth Amendment’s privacy doctrine in the age of the sweeping digital surveillance capabilities.

The first phase of the Augustine litigation (Augustine I) involved a murder investigation into Shabazz Augustine, who was alleged to have killed his girlfriend. During this phase of the case, the Commonwealth moved for an order to obtain, from the defendant’s cellular service provider, CSLI for a fourteen-day period ending with the last day that Augustine’s girlfriend was seen alive. A Superior Court judge granted the Commonwealth’s request pursuant to the Federal Stored Communications Act (FSCA). The FSCA grants a court authority to issue an order compelling a cellular telephone provider to disclose CSLI to a governmental entity upon a showing of “specific and articulable facts . . . that there are reasonable grounds to believe” that the records sought are “relevant and material to an ongoing criminal investigation.” Using the court’s order, the Commonwealth approximately sixty-four pages of CSLI records taken from the cellular phone. These data eventually lead to Augustine’s indictment for murder.

After his indictment for murder, the defendant filed a pretrial motion to suppress evidence. The defendant argued that government access to CSLI violated his reasonable expectation of privacy under Article 14 Massachusetts Declaration of Rights as well as the Fourth Amendment. In response, the Commonwealth maintained that cell phone users have no reasonable expectation of privacy in CSLI, a business record, because they voluntarily transmitted the information to the mobile phone provider. Absent a reasonable expectation of privacy, Article 14 did not require the Commonwealth to secure a warrant to obtain the information. The Court granted the motion, after which the Commonwealth was granted an interlocutory appeal to the Supreme Judicial Court.

The reviewing court held that the defendant had a reasonable expectation of privacy in the CSLI therefore, the warrant requirement of art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment applied to that information. The court vacated the previous allowance of the motion to suppress and remanded the case to the Superior Court with instructions to consider whether the affidavit that the Commonwealth had originally submitted in support of the FSCA request demonstrated probable cause.

Augustine II
On remand, the trial court ruled that the probable cause standard had not been met, and again granted the defendant’s motion to suppress evidence. Again, the Commonwealth sought interlocutory review of the order. The Supreme Judicial Court reaffirmed the warrant requirement for CSLI information. However, the Court did hold that that the CSLI evidence Augustine sought to have suppressed was admissible as the Commonwealth’s FSCA application showed sufficient probable cause of Augustine’s involvement in a crime.

The Main Takeaway From Augustine II

The civil liberties and electronic privacy community has lauded this decision as being a momentous step toward protecting citizens against intrusive surveillance techniques. Indeed, this assessment applies to cases involving CSLI because Augustine II clearly holds that citizens have a reasonable expectation of privacy in the location data that cell phone companies maintain about them. As noted in a statement made by the ACLU of Massachusetts, who filed an amicus brief in the case, the case may have established an important national precedent, as numerous states (and now the Supreme Court) have since followed Massachusetts’ lead in both judicial opinions and legislation restricting the unlimited search and use of CSLI data. Despite this enthusiasm, questions remain as to whether this decision will translate beyond CSLI applications, particularly, given the fact that the search technique used in the Augustine case occurred in 2004. Since then, local law enforcement and federal authorities have developed and employed even more sophisticated surveillance technology that could be viewed as more of a threat to privacy than mining for CSLI data. As such it is not entirely sure from a doctrinal perspective that future courts will be able to use the Augustine holding to limit the use of evidence obtained by newer technologies.