If you or a loved one were unlawfully seized by the New York City Police Department in the Bronx, Queens, Brooklyn, or Manhattan, you must call a police brutality lawyer in New York, Bryan J. Hutchinson, immediately to file a Notice of Claim to protect your rights. The Notice of Claim must be notarized and served personally or by Certified Mail on the City of New York within 90 days from the date of the occurrence.
New York courts have held that ignorance of the law regarding the necessity of filing a timely notice of claim does not constitute a reasonable excuse as a matter of law.
If the police have violated your civil rights, the law limits the time you must file a notice of claim. Call police brutality lawyer Bryan J. Hutchinson for a free consultation at (718) 671-0900.
New York City Police Department History of Stop and Frisk, Police Brutality, Malicious Prosecution, and False Arrest
The New York City Police Department (“NYPD”) made 4.4 million stops between January 2004 and June 2012. Black and Hispanics made up 80% of the 4.4 million people stopped. According to the landmark decision in Floyd v City of New York, 959 F. Supp2d 540 (2013) the court found that the New York City Police Department’s use of stop and frisk violated the constitutional rights of black and Hispanic New Yorkers in two ways:
The court in Floyd v City of New York also found the following additional facts:
I represent citizens in false arrest and use of excessive force litigation because every citizen has the right to be free from abuse of force by the government. The Founding Fathers created a government and disarmed themselves, giving the government a monopoly on the use of physical force. In return, the government explicitly promised in the Bill of Rights that it would protect our rights.
The Bill of Rights is a series of restrictions on the power of the United States government to interfere with our natural rights of liberty and property, including but not limited to, freedom of speech, freedom of the press, free assembly, free association, and the right to keep and bear arms. The Fourth, Fifth, and Sixth Amendments to the United States Constitution are a part of the Bill of Rights which is the first ten amendments to the United States Constitution.
The government must have objectively defined laws, rules, and procedures for the trial and punishment of crimes. We have a right to defend ourselves against false accusations and imprisonment by an overzealous prosecutor, a biased judge, or a corrupt government.
The American jury system because it is the only legal system where regardless of your socioeconomic, racial, or religious background it can keep the government to its promise of protecting our rights. Thomas Jefferson wrote, “I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. The Founding Fathers did not trust an all-powerful government such as the monarchy that existed in England. The American jury system keeps the government to its promise of protecting the rights of the innocent.
You have the right to an attorney who will help protect you from the abuse of governmental power. The right to counsel is the key to protecting our right to liberty and life. The right to counsel is most important at the time a fellow citizen is arrested. Former United States Supreme Court Justice Byron White said that the greatest miscarriage of justice occurs at the identification phase of criminal prosecution.
Consequently, if you are considered a person of interest by the government or have been abused or falsely accused of a crime you must get immediate legal representation. For an immediate free consultation please call Bryan J. Hutchinson Bronx, New York police brutality lawyer at (718) 671-0900.
I represent citizens in police misconduct cases because I wholeheartedly believe in the principles of The Founding Fathers:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”
The government is formed by the people to help us solve civil disputes and protect us from domestic and foreign criminals. According to Patrick Henry “[t]he Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government lest it comes to dominate our lives and interests.” The government has only so much power as we grant it.
“A government is the most dangerous threat to man’s rights: it holds a legal monopoly on the use of physical force against legally disarmed victims.” — Ayn Rand, Philosopher — You have the right to be free from the use of excessive force by the government. Should the government abuse the power we granted it then we must revoke those powers or seek redress.
Every member of our society is entitled to equal protection from the tyranny of the government. The Declaration of Independence reminds us “All men are created equal.” The Bible also reminds us in Galatians 3:28 that “There is neither Jew nor Gentile, neither slave nor free, nor is there male and female, for you are all one in Christ Jesus.” Unfortunately, members of the African American and low-income social groups are often the victim of police misconduct. Socially disadvantaged groups need protection from the government more than any other group.
In our history, some people have condoned government abuse in the false belief that it makes them safer. However, those who would deny victims of police misconduct compensatory damages must be reminded that Benjamin Franklin said: “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.”
We are all entitled to fair and just compensation for injuries caused by the government. Henry David Thoreau wrote that “Whatever the human law may be, neither an individual nor a nation can commit the least act of injustice against the obscurest individual without having to pay the penalty for it.”
We place our trust in a jury system because it is the only means to hold the government to the principles of the constitution. Socially disadvantaged groups do not have the economic clout to change police procedures. That is why seeking damages before a jury for violation of our civil rights is the most powerful tool in reigning in abuse of government power.
All our civil rights cases are based upon a contingency fee arrangement. We do not charge clients any attorney fee unless we recover money for our clients.
You are entitled to compensatory damages for:
If your civil rights have been violated by the government call immediately because the law limits the time you must file a notice of claim. Call Bryan J. Hutchinson, Bronx, New York police brutality lawyer for a free consultation at (718) 671-0900.
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION
The Fourth Amendment protects citizens against unreasonable search and seizures according to the U.S. Supreme Court in the landmark case of Terry v Ohio. However, the New York City Police Department does not violate the prohibition on unreasonable searches and seizures if they stop you on the street and frisks you without probable cause to arrest, if the police have a reasonable suspicion that you have committed, is committing, or is about to commit a crime and has a reasonable belief that you “may be armed and presently dangerous.”
In the case of Payton v New York, 445 US 73 (1980), the United States Supreme Court held that searches and seizures inside of your home without a warrant are presumptively unreasonable.
A warrantless search of your home may be lawful under the following limited circumstances:
– If you consent to the police search of your home. See Davis v United States, 328 US 582 (1946);
– If the search is incident to a lawful arrest. See United States v Robinson, 414 US 218 (1973);
– If there is probable cause to search and exigent circumstances. See Payton v New York, 445 U.S. 573 (1980); or
– If the items are in plain view. See Maryland v Macon, 472 US 463 (1985).
Therefore, you should never let the police in your home unless they have a valid search warrant.
You are seized within the meaning of the Fourth Amendment if a New York City Police Department police officer communicates to you or conduct is such that a reasonable person under the circumstance would believe that they were not free to leave.
Two things must happen for there to be a seizure of a person. First, the police must show authority. The use of forceful language, physical contact, the presence of handcuffs or weapons is strong evidence of authority. Second, the person being seized must submit to the authority of the police. If you walk away then you were not seized.
The Fourth Amendment protects all individuals against unreasonable searches or seizures by the New York City Police Department. The Supreme Court has held that the Fourth Amendment permits the New York City Police Department to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”
The New York City Police Department can stop and detain you if they have probable cause to believe that you are about to commit a crime or have committed a crime. The general rule is that Fourth Amendment seizures are “reasonable” only if based on probable cause to believe that the individual has committed a crime.
The New York City Police Department must respect your Fourth Amendment rights during pre-trial detention. The Fourth Amendment establishes the minimum constitutional “standards and procedures” not just for arrest but also for subsequent “detention.”
You have the right to refuse to speak with the New York City Police Department or any other law enforcement agency. You have the right to say to the police “I wish to remain silent.”
You do not have to consent to a search of yourself, your property, your car, or your home. Remember that if you consent to a search it may affect your rights in court.
In the case of Payton v New York, 445 US 73 (1980), the United States Supreme Court held that searches and seizures inside of you without a warrant are presumptively unreasonable.
A warrantless search of your home may be lawful under the following limited circumstances:
– If you consent to the police search of your home. See Davis v United States, 328 US 582 (1946);
– If the search is incident to a lawful arrest. See United States v Robinson, 414 US 218 (1973);
– If there is probable cause to search and exigent circumstances. See Payton v New York, 445 U.S. 573 (1980); or
– If the items are in plain view. See Maryland v Macon, 472 US 463 (1985).
Therefore, you should never let the police in your home unless they have a valid search warrant.
Although you do not have to consent to the police search yourself, your property, or your car you cannot interfere with the police in performing their work.
Interference with a police officer’s performance of his or her duty is a crime. Under New York Penal Law § 195.05 a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs, or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.
If you are stopped in your car you must produce your license, registration, and insurance information. There are certain circumstances in which your car may be searched without a warrant. In those cases, simply state that you do not consent to the search. Do not interfere or obstruct the police or you may be arrested for obstruction of justice.
The police have the right to stop you for suspected driving while intoxicated. In such a case you may be asked to take a chemical test to determine your blood alcohol content. Blood alcohol content (BAC) is the percentage of alcohol in your blood and is normally determined by a chemical test of breath, blood, urine, or saliva. A BAC of more than .05 percent is legal evidence that you are impaired, a BAC of .08 percent or higher is evidence of intoxication, and a BAC of .18 percent or more is evidence of aggravated driving while intoxicated. Driving while impaired or intoxicated is a serious traffic safety problem in New York. It is estimated that more than 20 percent of all highway deaths in New York involve the use of alcohol or other drugs.
Give the police only your name and address. Remain silent and do not attempt to explain yourself or give a story. If you have an attorney demand to speak with your attorney. If you do not have an attorney you have the right to be represented by an attorney when you go to court.
FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Most Americans are familiar with the 5th Amendment to the United States Constitution through movies and television shows. The Fifth Amendment guaranteed that you cannot be compelled to be a witness against yourself. It guarantees that you cannot be tried twice for the same crime. The Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property, without due process of law.
The Fifth Amendment to the Bill of Rights of the US Constitution states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Self-Incrimination Clause
“No person shall . . . be compelled in any criminal case to be a witness against himself . . .”
The Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings”. See Lefkowitz v Turley, 414 US 70 (1973).
The New York State Constitution Article I, Section 6 forbids the State from compelling incriminating answers which may be used in any criminal proceedings. However, the law permit incriminating testimony to be compelled if neither it nor its fruits are used against you in a future criminal proceeding. See Lefkowitz, 414 US 70.
You have the constitutional right to refuse to speak with the police. If you are detained or arrested by law enforcement you have the right to remain silent and only disclose your name and address.
Double Jeopardy Clause
“No person shall be . . . subject to the same offense to be twice put in jeopardy of life or limb . . .”
Federal law provides that double jeopardy is attached when a citizen is prosecuted twice for a crime arising out of the same offense. Under Blockburger v United States, 284 US 299 (1932), two distinct statutory provisions do not constitute the “same offense” for double jeopardy purposes if each provision requires proof of a fact which the other does not.
New York Criminal Procedure Law Section 40.20 provides that a person shall not be separately tried twice for two separate offenses based on the same act or criminal transaction except:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
(b) Each of the offenses as defined contains an element that is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
(d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after prosecution for the assault or other
non-homicide offense; or
(e) Each offense involves death, injury, loss, or other consequence to a different victim; or
(f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon the insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this State; or
(g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this State and the offense was the result of a conspiracy, facilitation, or solicitation prosecuted in another State.
(h) One of such offenses is enterprise corruption in violation of Section 460.20 of the penal law, racketeering in violation of federal law, or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.
Due Process Clause
“No person shall be . . . deprived of life, liberty or property, without due process of law . . .”
The Founding Fathers wanted the accused to have a fast trial and not to suffer the fate that many had suffered in the King’s dungeon in Great Britain.
In New York, the State must not unreasonably delay prosecuting the accused. The accused is entitled to a speedy trial as provided for in New York Criminal Procedure Law Sections 30.20 and 30.30. Once you are arrested the criminal process has started and you are constitutionally entitled to a speedy trial. See People v Prosser, 309 NY 353 (1955).
Grand Jury Clause
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .”
The Founding Fathers did not trust an all-powerful government, further, they did not trust the life of their fellow citizen in the hands of a single federal prosecutor. Therefore, they created the grand jury system where members of the community would determine if there is probable cause that a fellow citizen committed a crime.
The courts have ruled that any crime that may be punished by more than one year of imprisonment in a penitentiary or at hard labor is an infamous crime. See Green v United States, 356 US 165, 183 (1958); Mackin v United States, 117 US 348, 350-52 (1886); United States v Russell, 585 F2d 368, 370 (8th Cir. 1978); Catlett v United States, 132 F2d 902 (4th Cir. 1943). For example, all federal felonies are punishable by more than one year and are therefore infamous crimes. See 18 USC § 4083. Likewise, in New York, all State felonies are punishable by a term of imprisonment of more than one year. Where a citizen is being prosecuted for a felony the law requires that the accusations be presented to a grand jury. Therefore, all federal and state felonies are infamous crimes requiring grand jury action for prosecution.
We zealously represent clients in the Bronx, Queens, Brooklyn, Manhattan, Westchester, and Nassau Counties in all aspects of State and Federal criminal law matters from arrest to trial. If you are about to be arrested or wanted for questioning by law enforcement then you should protect your rights by calling the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.
SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Right to Speedy Public Trial by an Impartial Jury of Your Peers
The Sixth Amendment to the Bill of Rights provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The Sixth Amendment to the Bill of Rights guarantees that a citizen accused of a crime has the following seven rights:
1) speedy trial;
2) public trial;
3) an impartial jury;
4) to be informed of the nature and cause of the accusation;
5) confrontation of witnesses;
6) witnesses in his favor; and
7) assistance of counsel.
Speedy Trial Clause
“In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . .”
The sixth amendment grants the accused the right to a speedy trial to prevent citizens from lingering in prison while the State drags its feet. The Founding Fathers wanted an accused to have a fast trial and not to suffer the fate that many had suffered in the King’s dungeons.
Public Trial Clause
“In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . .”
The right to a public trial guaranteed that the government would not have secret evidence, secret trial, and secret imprisonment. The Founding Fathers detested the European system where people were persecuted for political and religious reasons and tortured and imprisoned. They did not trust the government system or the hierarchy of a monarchy and wanted to create a government that did not abuse its power.
Impartial Jury Clause
“In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury . . .”
The Founding Fathers did not trust the life and liberty of one of their fellow citizens in the hand of a single judge. They did not trust the government or judges who may be beholden to a power structure. They only trusted the life and liberty of a fellow citizen with another citizen.
Justice Byron White reminds us that “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt overzealous prosecutor and against the compliant, biased, or eccentric judge…”
We are entitled to an impartial jury comprised of a fair cross-section of the community. The jury will safeguard our rights against abuse by the government.
Accusation or Arraignment Clause
“In all criminal prosecutions, the accused shall . . . be informed of the nature and cause of the accusation . . .”
The accused has a right to know the specifics of the crimes he is being accused of committing. You have a right to know who, what, when, and where of the alleged crime. You have the right to mount a defense against the accusation. The government through the prosecutor must specify the elements of the crime in the accusatory instrument. This will prevent the government from maliciously prosecuting those who disagree with its political or religious beliefs.
Confrontation Clause
“In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . .”
You have the right to a face to face confrontation and cross-examination of those who would
bear false witness against you in court. This is to prevent the government from using the testimony of secret witnesses to convict a citizen of a crime. You have the right to cross-examine the witness in court. However, the right to confrontation has been eroded over the years as courts have allowed child witnesses to testify by close circuit television. In June 2010, the New York State Court of Appeal, the highest court in the State in a case called People v Wooten, allowed an elderly and ill crime victim who had moved from New York to California to testify by two-way live close circuit television.
Compulsory Witness Clause
“In all criminal prosecutions, the accused shall enjoy the right to . . . have compulsory
process for obtaining witnesses in his favor . . .”
The compulsory witness clause allows the accused the right to call accomplices to the stand and conduct cross-examination. It also prevents the government from using an informant to provide evidence against the accused. In Rovario v United States, 353 US 53, 61 (1957), a case involving heroin smuggling, the United States Supreme Court, acknowledged the obligation of citizens to report crimes to law enforcement. The court noted that preserving the identity of citizens encourages citizens to exercise this obligation.
The court also noted that fundamental fairness requires that “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause, the privilege must give way.”
The court went on to hold that “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”
Therefore, the courts must balance the following factors in determining whether to keep the identity of a witness secret:
1) Nature of the crime charged;
2) Possible defenses;
3) Significance of the informer’s testimony; and
4) Other relevant factors.
Right to Counsel Clause
“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.”
On April 22, 1777, the framers of the New York State constitution wrote ”
“Whereas the many tyrannical and oppressive usurpations of the King and Parliament of Great Britain on the rights and liberties of the people of the American colonies had reduced them to the necessity of introducing a government by congresses and committees, as temporary expedients, and to exist no longer than the grievances of the people should remain without redress; And whereas the congress of the colony of New York did, on the thirty-first day of May now last past, resolve as follows, viz:
“And it is further ordained, That in every trial on impeachment, or indictment for crimes or misdemeanors, the party impeached or indicted shall be allowed counsel, as in civil actions.”
The right to counsel is one of the most basic and fundamental rights in the American criminal justice system. You have the right to have an attorney of your own choosing. If you cannot afford an attorney the state will provide an attorney. The appointment of an attorney for you by the court does not entitle you to select a particular attorney.
You have a right to counsel at the identification stage which may take the form of a lineup, also known as an identification parade or show up. In United States v Wade, 388 U.S. 218 (1967), the United States Supreme court held that the right to counsel attaches at the lineup. In Wade, the court pointed out that “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.”
Consequently, you want to have an attorney representing you at the earliest time that you determine that you may be a person of interest in a crime. A layperson may not be alerted to many ways that law enforcement may intentionally or unintentionally affect eyewitness identification.
If you or a loved one is a person of interest to the police or has been arrested, you must get immediate legal representation. For an immediate free consultation please call Bryan J. Hutchinson Bronx police brutality lawyer at (718) 671-0900.
NEW YORK POLICE MALICIOUS PROSECUTION
Malicious prosecution in New York is established if:
(1) the initiation of a proceeding;
(2) its termination favorably to the plaintiff;
(3) lack of probable cause; and
(4) malice.
See the Colon v City of New York, 60 NY2d 78 (1983).
For example, if the police file a false criminal complaint, misrepresented or falsified evidence, withheld evidence, or otherwise acted in bad faith then you may have a claim of malicious prosecution claim against the government.
The statute of limitations starts to run upon the termination of the criminal case in your favor. See Singleton v City of New York, 632 F2d 185, 193 (2d Cir1980); Murphy v Lynn, 53 F3d 547, 548 (2d Cir 1995), citing Colon v City of New York, 60 NY2d 78, 82 (1983). According to the United States Supreme Court, the forum state’s personal injury statute of limitations governs. See Wilson v Garcia, 471 US 261 (1985); Owens v Okure, 488 US 235 (1989).
New York malicious prosecution is established if you prove that:
(1) the government initiated or continued prosecution against you;
(2) without probable cause to believe the proceeding can succeed;
(3) the proceeding was begun with malice; and
(4) the matter terminated in your favor.
See Conway v Vill. of Mount Kisco,750 F2d 205, 214 (2d Cir1984); Ricciuti v N.Y.C. Transit Auth., 124 F3d 123, 130 (2d Cir1997); Cantalino v Danner, 96 NY2d 391, 394 (2001); Colon v City of New York, 60 NY2d 78, 82 (1983); Martin v City of Albany, 42 NY2d 13, 16 (1977) Heany v Purdy, 29 NY2d 157, 159-160 (1971).
NEW YORK POLICE FALSE ARREST
The New York City Police Department has arrested you when the police have seized your person. However, not all seizures are considered an arrest. According to the New York Court of Appeal whenever an individual is physically or constructively detained by significant interruption of his liberty of movement because of police action, that individual has been seized within the meaning of the Fourth Amendment. See People v Cantor, 36 NY2d 106 (1975).
New York’s statute of limitation for false arrest starts to run when you are seized or taken into custody. A one-year limitations period also governs a New York state law claim for assault, battery, and false imprisonment. See CPLR § 215. The courts have held that claims for false arrest or excessive force accrue on the date the arrest is made or the force is used. See Ormiston v Nelson, 117 F3d 69, 71 (2d Cir 1997). According to the United States Supreme Court, the forum state’s personal injury statute of limitations governs. See Wilson v Garcia, 471 US 261 (1985); Owens v Okure, 488 US 235 (1989).
New York City Police Department may be liable for a claim under 42 USC § 1983 for false arrest if you prove that:
(1) the police intended to confine you;
(2) you were conscious of the confinement;
(3) and you did not consent to the confinement; and
(4) the confinement was not otherwise privileged.” See Carson v Lewis, 35 F. Supp2d 250, 257 (EDNY1999), citing Singer v Fulton Cnty. Sheriff, 63 F3d 110, 118 (2d Cir. 1995), cert. denied, 517 US 1189 (1996)). The existence of a probable cause is a complete defense to a 42 USC § 1983 claim for false arrest. See Weyant v Okst, 101 F3d 845, 852 (2d Cir.1996)
NEW YORK POLICE EXCESSIVE USE OF FORCE
A New York City police officer may not seize an unarmed, nondangerous suspect by shooting him dead. Where the suspect poses no immediate threat to the officer and no threat to others, the use of deadly force to do so is unjustified and a violation of the Fourth Amendment.
New York police may use deadly force to prevent serious physical injury, death, or escape. In the case of Tennessee v Garner, 471 US 1 (1985), the United States Supreme Court held that it is constitutional for the police to use deadly force “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Id., at 11.
New York police brutality must be proven based on the facts and circumstances of each particular case. In Graham v Connor, 490 US 386, 396 (1989), the United States Supreme Court held that the question of whether an officer has used excessive force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Furthermore, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. And “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary for a particular situation.” Id., at 396–397.
New York City Police Departments’ inadequate training of its officers may give rise to municipal liability if it shows “deliberate indifference” and causes a violation. See City of Canton v Harris, 489 US 658, 389-91 (1978); Bd. of County Comm’rs of Bryan County v Brown, 520 US 397, 403-07 (1997). A pattern of violations is usually necessary to show culpability and causation, but in rare cases, one violation may suffice. Bryan County, 520 US at 409. The Court has hypothesized only one example justifying single-incident liability: a failure to train police officers on using deadly force. See Canton, 489 US at 390 n.10.
A New York claim for assault, battery, and false imprisonment has a one-year statute of limitation. See CPLR § 215. The courts have held that claims for false arrest or excessive force accrue on the date the arrest is made or the force is used. See Ormiston v Nelson, 117 F3d 69, 71 (2d Cir.1997). According to the United States Supreme Court, the forum state’s personal injury statute of limitations governs. See Wilson v Garcia, 471 US 261 (1985); Owens v Okure, 488 US 235 (1989).
QUALIFIED IMMUNITY
Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See White v Pauly, 580 US (2017) (per curiam) (slip op., at 6) (alterations and internal quotation marks omitted). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” See Brosseau v Haugen, 543 US 194, 198 (2004).
Courts have repeatedly said that immunity protects “all but the plainly incompetent or those who knowingly violate the law.” See Mullenix v Luna, 577 US at (slip op., at 4–5).
But see Hope v Pelzer, 536 US 730 holding that “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” See Hope v Pelzer, 536 US 730, 741 (2002).
Courts have noted that the use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent “squarely governs” the specific facts at issue.
Governmental actors are “shielded from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” “[T]he salient question . . . is whether the state of the law” at the time of an incident provided “fair warning” to the defendants “that their alleged [conduct] was unconstitutional.” See Hope v Pelzer, 536 U S 730, 739-741 (2002).
Police officers are not entitled to qualified immunity if (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. See District of Columbia v Wesby, 583 US (2018) (slip op., at 13) (quoting Reichle v Howards, 566 US 658, 664 (2012)).
In the case of Ashcroft v al-Kidd, 563 US 731, 746 (2011), Justice Kennedy in his concurring opinion stated that (“[q]ualified immunity is lost when plaintiffs point either to ‘cases of controlling authority in their jurisdiction at the time of the incident’ or to ‘a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful” (quoting Wilson v Layne, 526 US 603, 617 (1999)).
In other words, for the court to find that qualified immunity does not apply, the plaintiff must identify a case where an officer acting under similar circumstances as the offending officer was held to have violated the Fourth Amendment.
ATTORNEY FEES FOR 42 USC § 1983 VIOLATION
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 USC § 1988, allows a successful plaintiff to recover reasonable attorney fees for civil rights violations by the police. See Hensley v. Eckerhart, 461 US 424 (1983); Blum v. Stenson, 465 US 886 (1984). Attorney fees for prisoners are separately covered by the Prison Litigation Reform Act of 1995.
ARREST TO ARRAIGNMENT IN NEW YORK CITY
If you are asked by the New York City Police Department to turn yourself in at a local precinct you should retain counsel to accompany you to the precinct. It is important that the police know that you have counsel to protect your Miranda Rights. You should bring with you two forms of identification such as a driver’s license, passport, school ID, and/or DMV ID. You should also bring a roll of quarters to make telephone calls. Whether you are arrested by turning yourself in or without notice you will probably be handcuffed and taken to a local precinct to be processed.
If you are arrested in any of the five boroughs of New York City and taken to the local precinct a police officer will interview you and obtain what is formally called your “pedigree” information such as your name, address, date of birth, and social security number.
The police will also voucher your personal property such as jewelry, money, house keys, medication, wallet or purse, etc. If you have contraband the police will also voucher it and it may be used as evidence against you for possession of the contraband. Make sure you get a copy of the voucher form or at least the voucher number.
You will be fingerprinted and photographed if you are charged with a felony or misdemeanor pursuant to the New York City Administrative Code, Vehicle and Traffic Law, or Penal Law.
If you are charged with only a violation such as disorderly conduct you will probably only be photographed and not fingerprinted. In its sole discretion, the police officer at the precinct may issue a Desk Appearance Ticket (DAT). That means you will be released at the precinct and not take to central booking. You will then have to appear in court on the dates specified in the DAT.
It takes approximately six hours to be processed at a local precinct.
You are generally allowed to get three free telephone calls within New York City. If you need to call outside New York City you are allowed three collect calls. There may also be payphones available to make a call.
Pursuant to the United States Supreme Court case called Miranda v Arizona, 384 US 436 (1966), the Court held that, in order to “dispel the compulsion inherent in custodial” interrogation, certain warnings must be given “at the outset of the interrogation.”
Those warnings advise the suspect that he has the right to remain silent, that any statements he makes can be used against him in court, that he has the right to consult with counsel, and that if he cannot afford an attorney, one will be provided for him prior to questioning.
Immediately upon being contacted by the police you should invoke your Miranda rights and remain silent. Once you invoke your right to counsel, the police must cease questioning you. Do not make the mistake that too many people make by continuing to talk to the police because you will be waiving your Miranda rights. Do not talk to the police because you will only dig yourself into a hole. The police cannot offer you any deals for cooperating with their investigation. Only the district attorney can make a promise to you for cooperating. Do not tell your story to your cellmate. Do not talk to anyone unless your lawyer is present. The biggest mistakes are made immediately after an arrest.
After you are processed at the local New York City police precinct you will be taken to central booking which generally occurs at the local criminal courthouse. At central booking, you will be interviewed by an employee of the Criminal Justice Agency, who will inquire about your family, work history, and community ties to determine whether you are a risk of flight and will return to court after arraignment. You should provide your current employment, family ties, and the phone number of someone who can verify your information.
After you have been processed by CJA you will be brought to a holding cell to be arraigned.
If you have retained private counsel then he or she will meet with you in one of the booths near the holding cell to interview you. If you have not arranged for private counsel the court will appoint counsel to protect your rights.
Your attorney will inform you of the following:
Once your paperwork is ready and you have met with your lawyer the case is ready to be arraigned. The court officer will bring you from the holding cell before the judge in open court.
The prosecutor will give a brief statement of the charges. To save time and judicial resources it is customary for your attorney to waive reading of the formal charges. The waiver of the reading of the formal charges is not a waiver of your rights to dispute the sufficiency of the accusatory instrument.
At the arraignment, the court will determine whether you should be released on recognizance (ROR). Which is your good faith promise to return to court. Or whether bail is required or you should be held without bail. If the prosecutor is demanding bail then your attorney will argue why ROR or a reduced bail should apply. Make sure your family and friends show up at arraignment to show family and community ties. In addition, make sure that your family and friends are on their best behavior in the courtroom.
The arraignment is not a trial or evidentiary hearing. There are no witnesses. The police may not appear. Don’t expect your lawyer to rant, rage, and put on a show. Any ranting is merely for showmanship and is not in your best interest.
The prosecutor will also inform the court of certain required notices, including but not limited to, whether you made any statements to the police, or if the police performed some form of identification procedure a part of the case. For example, were you identified in a lineup or show up.
Sometimes the case gets disposed of at the arraignment. If you take a plea at arraignment the case will be disposed and you then have to pay any applicable fees, fines or penalties. Generally, the entire arraignment process takes between three to five minutes.
We zealously represent clients in the Bronx, Queens, Brooklyn, Manhattan, Westchester, and Nassau Counties in all aspects of State and Federal criminal law matters from arrest to trial. If you are about to be arrested or wanted for questioning by NYPD then you should protect your rights by calling Bryan J. Hutchinson Bronx, a New York police brutality lawyer at (718) 671-0900 for a free confidential consultation.
MIRANDA RIGHTS
In Miranda v Arizona, 384 US 436 (1966), the Court applied the Fifth Amendment privilege against self-incrimination in the context of custodial interrogation. After you are arrested the police must warn you that you have the right to remain silent, that any statements you make can be used against you in court, that you have the right to consult with counsel, and that if he cannot afford an attorney, one will be provided for you prior to questioning. If the police fail to provide the Miranda warnings or a fully effective equivalent, any statements obtained from the suspect are inadmissible in the government’s case in chief. See Dickerson v United States, 530 US 428, 443-444 (2000).
Under the Fifth Amendment to the Constitution, no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The police may use your confession without violating your Fifth Amendment right only when the decision to confess is your free choice.” See United States v Anderson, 929 F2d 96, 98 (2d Cir. 1991). “[T]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause, th[e] Court in Miranda concluded that the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” See Missouri v Seibert, 124 S.Ct. 2601, 2608 (2004). “Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained.” Id. “Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility.” Id. “[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” See Berkemer v McCarty, 468 US 420, 433 n.20 (1984).
After you are arrested the police must warn you that you have the right to remain silent, that any statements you make can be used against you in court, that you have the right to consult with counsel, and that if he cannot afford an attorney, one will be provided for you prior to questioning. If the police fail to provide the Miranda warnings or a fully effective equivalent, any statements obtained from the suspect are inadmissible in the government’s case in chief. See Dickerson v United States, 530 US 428, 443-444 (2000).
The police may later re-approach you and provide you with fresh warnings, and attempt to persuade you to cooperate. If you invoke your right to counsel – “I do not wish to speak with you without an attorney”, then the police must cease questioning you until counsel has been made available to you unless you initiate further contact with the police.
A waiver of your Miranda rights must be knowing and voluntary. “A voluntary relinquishment of a right occurs when the relinquishment is the product of a free and deliberate choice rather than intimidation, coercion, or deception.” See United States v Male Juvenile, 121 F3d 34, 41 (2d Cir. 1997). The courts have held that the police officers’ state of mind is irrelevant to the question of voluntariness. See Moran v Burbine, 475 US 412, 423 (1986). “The police are allowed to play on your ignorance, anxieties, fears, and uncertainties. The law does not allow them to magnify those fears, uncertainties, and so forth to the point where the rational decision becomes impossible. See United States v Rutledge, 900 F2d 1127, 1130 (7th Cir.1990). The court must look to the totality of the circumstances to determine whether a defendant was given the chance to “deliberately waive his rights.” See Male Juvenile, 121 F3d at 41. The government is required to prove you waived your Miranda rights by a preponderance of the evidence. In the case of Make Juvenile the court stated that “To prove a valid waiver, the government must show:
(1) that the relinquishment of the defendant’s rights was voluntary, and
(2) that the defendant had full awareness of the right being waived and of the consequences of waiving that right.
Your Miranda right to counsel must be invoked “unambiguously.” See Davis v United States, 512 US 452. You must not be ambiguous about invoking your Miranda rights. If you make an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation or ask questions to clarify your intent. You must tell the police that you want to remain silent or that you do not wish to speak to them without the presence of an attorney. You must then shut your mouth. If you later open your mouth and start talking then the court may say that you waived your right to remain silent when you “knowingly and voluntarily” made a statement to police.
A waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” See Moran v Burbine, 475 US 412, 421.
The purpose of the Miranda warning is to protect against admitting coerced statements at trial. The US Supreme Court has held that “[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes.” See Harris v New York, 401 US 222, 224 (1971).
In the Harris case, the court held that unwarned confessions obtained in custodial interrogation were admissible to impeach a defendant’s testimony. The absence of warnings, the Court held, did not taint the statement’s use for impeachment provided that “the trustworthiness of the evidence satisfies legal standards.” See Harris, 401 US at 224);
Similarly, in New York v Quarles, 467 US 649 (1984), the Court made an exception to Miranda’s general bar on the use of unwarned statements in the government’s case in chief. The court in Quarles held that voluntary unwarned statements made by a defendant during custodial interrogation, but obtained in order to protect the public safety, were admissible in the trial against the defendant.
Neither the impeachment rule nor the public safety rule can be reconciled with the position that Miranda means that unwarned statements made in custodial interrogation are inherently “compelled” under the Fifth Amendment.
Consequently, you must be aware that statements that are the product of government compulsion are not admissible for all purposes in a criminal trial. However, as the Harris and Quarles cases point out, if you make voluntary statements made not in conformity with the Miranda procedures during custodial interrogation are under certain circumstances your statements may be admissible against you at trial.
EIGHTH AMENDMENT
The Eighth Amendment states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment’s prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions. In Stack v Boyle, 342 U.S. 1 (1951), the court stated in part that federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. See Stack v Boyle, 342 U.S. 1, citing See Hudson v Parker, 156 US 277 (1895). The Court further states that “[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
FREE CONSULTATION
If you or a loved one are being abused by correction officers, forced to engage in prisoner fights, or denied medication or medical care call Bronx, New York police brutality lawyer, Bryan J. Hutchinson, to protect your 8th Amendment constitutional rights and get the compensation you deserve. Time is of the essence! The law limits the time you must file your Notice of Claim. Call now at (718) 671-0900.
Yes, you can sue the City of New York Department of Corrections for the condition of your confinement at Riker’s Island or the State of New York for your confinement in a State facility. New York corrections facilities cannot maintain inhumane prison conditions, deprive inmates of necessities or fail to protect their health or safety, or involve the infliction of pain or injury or deliberate indifference to their risk. The Eighth Amendment is applicable to the States through the Fourteenth Amendment, imposes upon the conditions in which a State may confine those convicted of crimes. In Rhodes v Kelly, 452 US 337 (1981), the United States Supreme Court held that conditions of confinement must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. See Rhodes v Kelly, 452 U.S. 337, citing Coker v. Georgia, 433 US 584, 592 (1977); Weems v United States, 217 US 349 (1910).
FREE CONSULTATION
If you or a loved one are being abused by correction officers, forced to engage in prisoner fights, denied medication or medical care call the Bronx, New York police brutality lawyer, Bryan J. Hutchinson, to protect your 8th Amendment constitutional rights and get the compensation you deserve. Time is of the essence! The law limits the time you must file your Notice of Claim. Call now at (718) 671-0900.
NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD
If you or your loved one has been a victim of police misconduct you have a right to file a complaint with the New York City Civilian Complaint Review Board (CCRB). You have the right to file a complaint even if you are incarcerated.
Within 18 months of the date of the incident, the offending officer must be served with the CCRB disciplinary charges. Therefore, you must act promptly or the offender may escape discipline. The law creates an exception to this deadline if the officer’s conduct is a crime.
You should file a complaint to protect your civil liberties and create a record of the misconduct. It will aid in correcting the police officer’s conduct in the future or help change police policies and procedures.
You can reach the New York City Civilian Complaint Review Board in person at its office, online, in writing, by telephone, or by visiting any NYPD precinct.
False Arrest, Malicious Prosecution, And Excessive Use of Force
The New York City Police Department (“NYPD”) made 4.4 million stops between January 2004 and June 2012. Black and Hispanics made up 80% of the 4.4 million people stopped. According to the landmark decision in Floyd v City of New York, 959 F. Supp2d 540 (2013) the court found that the New York City Police Department’s use of stop and frisk violated the constitutional rights of black and Hispanic New Yorkers in two ways:
(1) they were stopped without a legal basis in violation of the Fourth Amendment, and
(2) they were targeted for stops because of their race in violation of the Fourteenth Amendment.
The court in Floyd v City of New York also found the following additional facts:
The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was, in fact, a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
In 23% of the stops of blacks and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.
Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.
We represent citizens in false arrest and use of excessive force litigation because every citizen has the right to be free from abuse of force by the government. The Founding Fathers created a government and disarmed themselves, giving the government a monopoly on the use of physical force. In return, the government explicitly promised in the Bill of Rights that it would protect our rights.
The Bill of Rights is a series of restrictions on the power of the United States government to interfere with our natural rights of liberty and property, including but not limited to, freedom of speech, freedom of the press, free assembly, free association, and the right to keep and bear arms. The Fourth, Fifth, and Sixth Amendments to the United States Constitution are a part of the Bill of Rights which is the first ten amendments to the United States Constitution.
The government must have objectively defined laws, rules, and procedures for the trial and punishment of crimes. We have a right to defend ourselves against false accusations and imprisonment by an overzealous prosecutor, a biased judge, or a corrupt government.
The American jury system because it is the only legal system where regardless of your socioeconomic, racial, or religious background it can keep the government to its promise of protecting our rights. Thomas Jefferson wrote, “I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. The Founding Fathers did not trust an all-powerful government such as the monarchy that existed in England. The American jury system keeps the government to its promise of protecting the rights of the innocent.
You have the right to an attorney who will help protect you from the abuse of governmental power. The right to counsel is the key to protecting our right to liberty and life. The right to counsel is most important at the time a fellow citizen is arrested. Former United States Supreme Court Justice Byron White said that the greatest miscarriage of justice occurs at the identification phase of criminal prosecution.
Consequently, if you are considered a person of interest by the government or have been abused or falsely accused of a crime you must get immediate legal representation. For an immediate free consultation please call Bryan J. Hutchinson Bronx, New York police brutality lawyer at (718) 671-0900.
I represent citizens in police misconduct cases because I wholeheartedly believe in the principles of The Founding Fathers:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”
The government is formed by the people to help us solve civil disputes and protect us from domestic and foreign criminals. According to Patrick Henry “[t]he Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government lest it comes to dominate our lives and interests.” The government has only so much power as we grant it.
“A government is the most dangerous threat to man’s rights: it holds a legal monopoly on the use of physical force against legally disarmed victims.” — Ayn Rand, Philosopher — You have the right to be free from the use of excessive force by the government. Should the government abuse the power we granted it then we must revoke those powers or seek redress.
Every member of our society is entitled to equal protection from the tyranny of the government. The Declaration of Independence reminds us “All men are created equal.” The Bible also reminds us in Galatians 3:28 that “There is neither Jew nor Gentile, neither slave nor free, nor is there male and female, for you are all one in Christ Jesus.” Unfortunately, members of the African American and low-income social groups are often the victim of police misconduct. Socially disadvantaged groups need protection from the government more than any other group.
In our history, some people have condoned government abuse in the false belief that it makes them safer. However, those who would deny victims of police misconduct compensatory damages must be reminded that Benjamin Franklin said: “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.”
We are all entitled to fair and just compensation for injuries caused by the government. Henry David Thoreau wrote that “Whatever the human law may be, neither an individual nor a nation can commit the least act of injustice against the obscurest individual without having to pay the penalty for it.”
We place our trust in a jury system because it is the only means to hold the government to the principles of the constitution. Socially disadvantaged groups do not have the economic clout to change police procedures. That is why seeking damages before a jury for violation of our civil rights is the most powerful tool in reigning in abuse of government power.
All our civil rights cases are based upon a contingency fee arrangement. We do not charge clients any attorney fee unless we recover money for our clients.
You are entitled to compensatory damages for:
Past and future medical expenses;
Loss of earning, including future earnings;
Physical and mental pain and suffering, including but not limited to damages for discomfort, disfigurement, humiliation, emotional trauma, loss of body function, injuries for racial discrimination, and police misconduct or the death of a loved one.
If your civil rights have been violated by the government call immediately because the law limits the time you must file a notice of claim. Call Bryan J. Hutchinson, Bronx, New York police brutality lawyer for a free consultation at (718) 671-0900.
