Civil Rights Lawsuits Over Improper Searches

[Bubba Jimmy]

My question involves civil rights in the State of: New Jersey

I was leaving a grocery store. After I got into my parked vehicle, before even turning my car on, I was reading something on my phone and was approached by an officer, who claimed I was sleeping and told me to open the door to get out of my car. I told him, "I know my rights and I will not open my door." Then, he continued to ask me to get out of the car and told me that I was trespassing (mind of you I am legally parked in a Wal-Mart parking lot). So I rolled down my window, and he then proceeded to open my car door and pulled me out of my vehicle, turned me around, frisked me, and started to search my car. After he was done searching my car, he decided to give me a sobriety test because he said that I was "under the influence." During this time, back up had called in asking if the officer needed any assistance, and the officer dismissed the back up due to "investigating". From this point on, he gave me a sobriety test, which I passed with flying colors. He then told me I was being charged with a DUI, arrested me, and put me in the back of his patrol car and continued to search my vehicle. During this time, a back up patrol man drove by, and the back up was waived off by the arresting officer. Once I was taken back to station, I was given a breathalyzer and blew a zero blood alcohol content. Upon release, he twisted my handcuffs so hard, which left visible scrapes and bruises that I have photo documentation of. I am looking to file charges on the arresting officer immediately. Any advice or counsel would be appreciated on this matter. Thank you.

There could be video of this incident on the Walmart security camera system. If you believe your 4th amendment (or other civil) rights have been violated, review the matter with a civil rights attorney. Federal law provides for attorney fees if you were a victim of an illegal search and seizure. So, if a lawyer won't take your case it's because you don't have a case since s/he would be paid for winning.

As for an attorney not taking the case, well, they might reject taking it on contingency because it would mean money out of their pocket with no certainty of prevailing. Without significant damages, few attorneys are going to take a contingency case that MIGHT provide them with only routine compensation for their time. So, the OP might have a case for false arrest (provided he can show that the officer lacked probable cause to make the arrest - and a 0.00 BAC does not prove that by itself) ... but, if the case would take to much time or effort to make, and with only a minimal return on that investment, an attorney might reject it on contingency even if there is a decent case to be made. It can often be about the best bang for the buck, and paying clients pay the bills.

Attorneys don't typically take a case like this on contingency because damages are usually nominal, and 35% of $1 doesn't work for them. But if they win the dollar, they can also win their fees so they will take a strong case on speculation. Thus, if the entire episode was on Walmart video and it was exactly as portrayed, an attorney would likely take the case. That is because no reasonable court would find it likely to find evidence of drunk driving in the trunk of a vehicle since the only element of that crime is alcohol in the suspect's blood. His blood was in his body, not the trunk. The 4th amendment law on this is very clear. The police could do an inventory of the vehicle, which is NOT a search, if they impound it. Otherwise, to search the trunk they needed a warrant. The suspect was in custody so there was zero chance he was going to destroy any evidence in the trunk or access a weapon inside the trunk. If CA police departments are conducting themselves differently than this they are violating people's 4th amendment rights. Review Arizona v. Gant, Davis v. United States and South Dakota v. Opperman.

[cdwjava]

Who said anything about searching the trunk?

And if you think an attorney is going to take a contingency case that may well take many dozens of hours of time and take a year or two to litigate simply to receive fees that the COURT might decide is reasonable for his efforts, you clearly don't know many attorneys that practice in this field. Even a decent chance of winning their fees is not likely to compel most attorneys to take a case for free. In the OP's case, he may have a significant burden to PROVE that there existed no probable cause for the arrest. A distant surveillance video is not likely to be of any real use. Now, if the officer had a dascham or body cam that had good obs of the FSTs or other actions taken by the OP and these bore out a lack of objective probable cause, then it might be a different story and I would imagine a quick settlement would be in order.

As I previously suggested, he can complain to the agency and/or consult an attorney who can evaluate the facts to determine if there is a case.

[tonynewman]

you might very well have a case here, the last one I heard about and posted on this site was about a guy who got pulled over, refused the roadside and blew zero at the station,, they settled out of court and he got 70,000 dollars.

call a few lawyers up and see what they tell you. at the very least I would google this "how to File an Effective Complaint Against a Police Officer" this will explain how to report this bad cop the correct way so that it will produce some results.

[Bubba Jimmy]

Of course, if arrested in the vehicle for a DUI, it's perfectly reasonable to search the vehicle for alcohol and/or drugs - the substances that would have caused that condition.

How is that? A trunk full of half-empty Jim Beam bottles would have zero evidentiary value to the prosecution of a DUI offense. And if it is in the trunk, and the person has been seized, there is zero possibility that he will access the trunk and destroy the evidence. Thus, there is absolutely no justification for searching the trunk without a warrant. Wingspan is okay for weapons, and to prevent destruction of evidence. That's the law for searches incident to arrest.

And "contingency" typically means an attorney gets a percentage of what ever is recovered. Civil rights cases are not taken on contingency. The attorney gets 100% of his reasonable fees regardless of the amount of recover, even $1 in nominal damages, if the case is successful. Civil rights attorneys look for this kind of case. A 4th amendment violation would be such a case, and if the facts are strong they will take such a case. That's their bread-and-butter, since few people can fund such cases themselves. That's how they get paid in the vast majority of cases. If an attorney only gets paid on 50% of the cases he takes on this basis, but gets paid $400 an hour plus expenses for those cases, he's still making very good money.

I can only speculate as to what facts might exist other than what the OP has related. If the matter was caught on video then the FSB could be seen and an independent determination made of whether the OP exhibited signs of intoxication or influence, at least the visual part of that evaluation. If the reasonable suspicion / probable cause was alcohol related, blowing 0% is significant unless the person was diabetic or had some other reason and actually exhibited signs of intoxication. "Your honor, he could not stand on one foot, I smelled alcohol, he could not count backward from 25" in the face of 0% might call the officer's credibility into question. Particularly when he has conducted an illegal search.

It is rather a concern that a LE officer believes someone's trunk can be searched incident to an arrest and without a warrant. What about containers? Jackets in the back seat? Glove compartments?

- - - Updated - - -

Who said anything about searching the trunk?

He said they searched his vehicle. A search of a vehicle includes the trunk. A sweep for weapons is not a search of the vehicle. But just to be perfectly clear, if the police want to search the glovebox, containers, jackets, or trunks incident to an arrest they need a search warrant.

And if you think an attorney is going to take a contingency case that may well take many dozens of hours of time and take a year or two to litigate simply to receive fees that the COURT might decide is reasonable for his efforts, you clearly don't know many attorneys that practice in this field.

I know a great many attorneys, and one who specifically practices civil rights law. Strong cases that provide for recovery of legal fees, in spite of nominal damages recovery, is what the practice of civil rights law is all about. And you continue to use the term "contingency" for this, which I've pointed out is incorrect. A tort case in which the attorney gets 30% of the amount recovered is contingency. And tort attorneys take such cases all the time, and their fees are still limited to what is reasonable. An award of fees in a civil rights case is not taken on contingency. In the every day usage of language, a civil rights case could be considered contingent on winning the case, but in its legal usage a contingent fee is paid by the client. In a civil rights case, it is not paid for by the client and it is not a contingency fee per the ABA.

In the OP's case, he may have a significant burden to PROVE that there existed no probable cause for the arrest. A distant surveillance video is not likely to be of any real use. Now, if the officer had a dascham or body cam that had good obs of the FSTs or other actions taken by the OP and these bore out a lack of objective probable cause, then it might be a different story and I would imagine a quick settlement would be in order.

I'm afraid you have it backward. It is not up to citizens to prove that a police officer did not have probable cause. There is no presumption in the law that police officers are always right unless someone can prove they were wrong, no matter what you've been told or what you believe. A police officer has to be able to prove he had probable cause to make an arrest, get a search warrant, etc. A prosecutor has to be able to prove it in order to hold someone in jail. The burden is on the police/prosecution, not on ordinary citizens. Usually, it is the testimony of the officer that a court accepts as evidence of probable cause. I've experienced a police officer committing perjury under oath up front and in person, so perhaps the world actually works the way you describe if the police routinely lie about their probable cause. But that's not the law.

How would open bottles of Jack Daniels in a glovebox or jacket pocket in the back seat of a vehicle prove DUI? It might prove an open container charge, but the OP wasn't charged with that. What evidence can there possibly be inside a vehicle that tends to prove that a driver was under then influence? Marijuana? Again, presence in the vehicle would support only a possession charge. No, it's clear that the officer was looking for evidence of other crimes here, and for that he MUST get a warrant where there is no officer safety or destruction of evidence concern.

As I previously suggested, he can complain to the agency and/or consult an attorney who can evaluate the facts to determine if there is a case.

If my rights are violated I will not complaint to the violating agency. I would consult an attorney who specialized in evaluating civil rights violations - which is what I suggested to the OP a while back. If all citizens do the same, violations of civil rights by the police will decrease.

[Taxing Matters]

But if they win the dollar, they can also win their fees so they will take a strong case on speculation.

The statute allowing for attorney’s fees in a federal civil rights action, including one under 42 USC §1983 (which is what would apply here if there were violations of the OP’s constitutional rights) states that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). That has two implications. First, since the award of attorney’s fees is discretionary by the court, there is the risk that the attorney may not get his fees paid even if he wins the case for his client. Second, since the court may, in its discretion, award legal fees to the prevailing party, there is the risk that if the OP lost the case he or she could end up having to pay the legal fees of the city and the officers. This is not a statute that only allows the plaintif to recover legal fees as many consumer protection statutes do.

Note, too, that even if the attorney’s fees and expert’s fees (which the court in its discretion may award under § 1988(c )) are awarded to a successful plaintiff, there are other costs that the plaintiff may need to front for the litigation. If there are no actual damages and the nominal award of $1 is granted (which is all the Supreme Court has said may be awarded in the absence of compensatory damages) the case still comes out as a loser for the plaintiff.

Finally, when granted, the award of attorneys fees is based on what the court believes is a reasonable fee for the work done. It is not automatic that the court will allow that particular attorney’s usual hourly rate or that the court will allow all the hours the attorney claims. So, the lawyer might come out of this with significantly less than he hopes even getting the fees awarded.

All this to say that there is a lot of risk for a lawyer to take these cases when there are no significant compensatory damages and the lawyer has to bank on the court’s discretion as to what, if anything, he gets paid for those efforts. And for the client, without compensatory damages, he or she will effectively end up paying for the pleasure of litigating the case, since $1 isn't going to cover their part of the costs even if the court awards attorney and experts fees. This is why you don’t often see lawyers taking these sorts of cases. They want to work cases with significant compensatory damages on contingent fees; the payoff there is likely to be much better and more certain if the attorney wins the case for the client.

[tonynewman]

if the guy has a good case,, there will probably be a settlement right away,, if you have trouble finding a lawyer that will take the case,, look for a younger lawyer on clist or even contact the ACLU and ask for a recommendation.

there could be a number of factors that this cop didn't even have the legal ability to arrest for a DWI, in a civil asset forfeiture case a heard about a few weeks back,, a cop staked out a fancy car at a bar parking lot (on a tip) waiting for the owner to get into the car, the cop jumped the gun and grabbed the guy right after he opened the door and was getting in, therefore it was a bad arrest, as he was never even driving the car yet, or more to the point inside the car with the key actually in the ignition. so the DUI never stuck.

plenty of bad cops out there that do not do their job correctly or more to the point abuse the system and its laws, its far from some uncommon thing.

[Bubba Jimmy]

Here is one organization in Massachusetts that does exactly what I've described under exactly the terms I've described. Entire books are written, such as this one, on the subject. I know one of the attorneys listed here personally and based on what I know of him he makes a good living. There are such lawyers and organizations in most states. Therefore, I believe I've given good advice to the OP to consult an attorney that he should consult an attorney, many of whom will offer a free consultation. I really don't understand why folks believe this is wrong advice, or why they believe it is rare for attorneys to take such cases. It is not at all rare and entire careers are based on exactly what I've described. Oh well, I've cited cases to support what I've suggested to be true and I've cited online sources of the kinds of attorneys he can consult. I have nothing more to add to this discussion.

[Taxing Matters]

I really don't understand why folks believe this is wrong advice, or why they believe it is rare for attorneys to take such cases.

I’ve not said that telling the OP to consult a lawyer is wrong advice, nor have I seen that in any thread here. Certainly there are organizations that will pursue civil rights cases regardless of the potential fee in order to further their particular causes. And there are also lawyers that will take very good civil rights cases where if they win they’ll stand a good chance of getting awarded their fees by the court. My point is that the fees are not guaranteed to be awarded and that there is risk involved in taking on these cases. Thus, especially when there are no compensatory damages to seek, the lawyer is going to choose the cases to take carefully; he or she isn't going to want to litigate too many of these cases where the fees don’t get awarded, unless of course he or she works for an organization that pays his/her salary and they are in it to try to get favorable case law to further whatever cause they have.

[cbg]

Not sure why it looks any different, as I’ve not changed anything different about how I compose the text.

And I see all of Tax's posts in a very slightly smaller font than everyone else's.

[Bubba Jimmy]

[FONT=Garamond][SIZE=3]My point is that the fees are not guaranteed to be awarded and that there is risk involved in taking on these cases.

And I've indicated nothing to the contrary. Which is why I said,

"So, if a lawyer won't take your case it's because you don't have a case since s/he would be paid for winning. "

No, payment is not guaranteed, but the attorney decides what the likelihood is. A lawyer would review and decide if they had a case that would likely make them money - that is done on the merits of the case. Just like tort lawyers. They too have to win to get paid, and yet the ads for such attorneys are nauseatingly ubiquitous.

How many cases involving the civil rights of an individual are funded by the client, do you think?