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  1. #1
    Join Date
    Nov 2010
    Posts
    1

    Default Denied Miranda Rights and Access to a Lawyer

    My question involves police conduct in the State of Ohio. My (now ex-)husband was stealing from a neighbor. The police were investigating him, and threatened to arrest me. I found a divorce attorney to represent me to divorce my husband; this lawyer advised me not to speak further to the police.

    The police arrested me for the theft. I was told upon arrest, "You lawyered up, that is why you are going to jail." I was not Mirandized. I was sent to the county jail. There, sheriff's deputies tried to trick me into signing away my Miranda rights by telling me "It will not affect your court case." (I declined, but they got really mad at me.) I was kept for two days in solitary. I was allowed to access the phone twice to try to call my lawyer. Once I asked and was refused.

    On the third day there (without a shower, I might add) I was able to reach my divorce attorney and was trying to make arrangements for my family to retain his partner for the criminal defense. Later, I was told I was going to court and taken to another room where I was arraigned via videotape. I was not given an opportunity to have a lawyer present for this hearing.

    Next, the arresting officer showed up to question me. I told the sheriff's deputies I wanted my lawyer to be present. When I was placed into a room with the officer anyway, I told him I wanted my attorney. I was questioned anyway for about 20 minutes until I had an emotional breakdown. I tried to invoke my right to counsel two or three more times without avail.

    I would like to know how to find a lawyer to represent me in a section 1983 action. I think I do have an actionable offense. My criminal attorney said I did, but that he wouldn't represent me on one because it is a small town and they have to continue to work with this police department.

    What kind of award or settlement is possible (likely)?

    He also suggested I go talk to the police chief. What would that get me, and could it hurt any legal claim I might have?

    Thank you for any help or suggestions.

    catlady

  2. #2
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Miranda Rights Violation - Section 1983 Action and How to Find a Lawyer

    You will not prevail in a 1983 action. Miranda rights are a court decision, not a statute, first, and secondly, it is not a constitutional right. Finally, you can prove no damages. A Miranda violation is not a free pass to a bundle of money. You will never see any award or settlement. You really have a serious lack of understanding of what a 1983 federal action requires. No attorney is going to waste his time and money.

    The ONLY result of a Miranda violation in your case, is that any statements you made, your criminal attorney can get suppressed. They will not be allowed into evidence. I would also challenge the arrest as an attack on your rights of spousal privelege and that it is unconstitutional retaliation.

    But you should forget getting money out of this right now.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Miranda Rights Violation - Section 1983 Action and How to Find a Lawyer

    Quote Quoting catlady
    View Post
    The police arrested me for the theft. I was told upon arrest, "You lawyered up, that is why you are going to jail." I was not Mirandized.
    You only need to be Mirandized in the context of custodial interrogation.
    Quote Quoting catlady
    I was sent to the county jail. There, sheriff's deputies tried to trick me into signing away my Miranda rights by telling me "It will not affect your court case." (I declined, but they got really mad at me.)
    As in, they wanted to interrogate you so they presented you with a Miranda waiver form, and you chose to remain silent? Had they obtained a statement from you you might have been able to use those facts to challenge its admission, but you made no statement.
    Quote Quoting catlady
    I was kept for two days in solitary. I was allowed to access the phone twice to try to call my lawyer. Once I asked and was refused.
    Your county jail has "solitary"? I've seen isolation cells and observation cells in county jails, but not "solitary". The alternative, though, to being held in isolation would be to be placed within the general population of the jail.

    You don't actually have the constitutional right to a phone call, although the authorities will generally afford you access to at least a pay phone. (You'll note, the "right to a phone call" is not in your Miranda warnings). You were allowed to call your lawyer twice, but denied when you asked to call a third time? Inside of 48 hours? Not a civil rights violation. (Also, wasn't there a pay phone in the jail?)
    Quote Quoting catlady
    On the third day there (without a shower, I might add) I was able to reach my divorce attorney and was trying to make arrangements for my family to retain his partner for the criminal defense. Later, I was told I was going to court and taken to another room where I was arraigned via videotape. I was not given an opportunity to have a lawyer present for this hearing.
    So this was over a weekend? You could have tried insisting that the bail hearing be postponed until your lawyer could be present, but that would have at best delayed the bail hearing. Is that what you would have preferred?
    Quote Quoting catlady
    Next, the arresting officer showed up to question me. I told the sheriff's deputies I wanted my lawyer to be present. When I was placed into a room with the officer anyway, I told him I wanted my attorney. I was questioned anyway for about 20 minutes until I had an emotional breakdown. I tried to invoke my right to counsel two or three more times without avail.
    Did you make a statement or not?

    Have the charges against you since been dropped?
    Quote Quoting catlady
    I would like to know how to find a lawyer to represent me in a section 1983 action. I think I do have an actionable offense. My criminal attorney said I did, but that he wouldn't represent me on one because it is a small town and they have to continue to work with this police department.
    Ask your lawyer to refer you to a civil rights lawyer from outside of the area, or try a referral service.
    Quote Quoting catlady
    He also suggested I go talk to the police chief. What would that get me, and could it hurt any legal claim I might have?
    You would need to ask your lawyer what he believes that might get you. I'm thinking, at best, an apology. More likely, a statement along the lines of, "We'll look into this." If you're serious about trying to litigate a civil rights claim, I would suggest talking to your civil rights lawyer first.

  4. #4
    Join Date
    Aug 2007
    Posts
    3,835

    Default Re: Miranda Rights Violation - Section 1983 Action and How to Find a Lawyer

    1983 actions require proof of damages, just not a deminimus constitutional violation.

    No injury proven, the US SC has ruled only nominal damages can be awarded, $1.00.

    Police enjoy what is known as "Qualified Immunity" in civil suits, that is straight from the Supreme Court of the United States.

    If an attorney feels they can not overcome this burden and or prove damages, they will not pursue it for you.

    There is an old saying in the law, "The law does not provide a legal remedy for every wrong".

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