A man who was wrongly arrested has filed a federal lawsuit against the city of Detroit over his wrongful arrest, which he says was caused by faulty facial recognition technology. Courthouse News Service has the story here.
According to the lawsuit, people of color are up to 100 times more likely to be misidentified using the technology than white men because the algorithms were created using primarily Caucasian faces which creates an unfair database.
Other cities, including Boston and San Francisco, have banned the use of facial-recognition technology.
UPDATE 4/26/21: TechDirt has more on the story here.
Man who was misidentified by facial recognition software and subjected to police interrogation sues a city in New Jersey, its police department, and a prosecutor for false arrest, false imprisonment and violation of his civil rights. Go here for the story.
Prosecutors are usually protected from possible civil liability because they can claim immunity. However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.
There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one. In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law.
The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further proceedings.
You can read more about the case here, where you can also find an embedded copy of the opinion.
Suppose a person is charged of and convicted of a crime he or she did not commit and is later exonerated. Should that person have a claim for false imprisonment? against whom? and when would the statute of limitation begin to run?
These are some of the issues addressed by the US Court of Appeals for the Fifth Circuit in a recent decision in which it reversed and remanded dismissal of a false-imprisonment claim against the city and county of El Paso holding that false imprisonment is a continuing tort in Texas. The case was brought by a man who spent 17 years in prison for a sexual assault he did not commit.
You probably remember the story from a few months ago involving a police officer who arrested a nurse after she refused to draw blood from an unconscious patient because the police officer did not have a warrant. The police officer arrested the nurse and placed her in a squad car for some time before releasing her. A video of the incident went viral, and the story gained national attention. Eventually, the police officer was fired. Since then, the hospital changed its policies and no longer allows police officers access to patient care areas.
At the time, I remember thinking this seemed like an easy false imprisonment case. And it now certainly looks like it was. Just a couple of months removed from the incident, there is news that the nurse has agreed to a half a million dollar settlement.
The ABA Journal has the story with links to more information. Here is the original video:
Back in January several outlets reported on an incident in San Francisco involving an arrest of a public defender which was caught on video. Today, the ABAJournal.com is reporting that she has filed a complaint against the city and the police department.
Given that the incident was caught on video, the facts are easy to observe. The plaintiff's clients were in court that day for a hearing related to a misdemeanor robbery charge. While hanging out with their lawyer (the plaintiff) in the hallway, a police officer approached them to talk about another case and said he needed to take photos of the clients. The lawyer objected and the police officer then told her she would be arrested "for resisting arrest." That is a curious charge, since the police had not said they were going to arrest anyone. In other words, the lawyer was not interfering with the police's attempt to arrest her clients. She was also not resisting her own arrest since the police was not trying to arrest her. Bottom line, the cop essentially said "let me do what I want to do here or you will be arrested." And that is exactly what happened.
From what I can see, there is basis for a claim of false imprisonment here, but it is not clear what is the level of damages. The claim, however, is apparently not for common law false imprisonment but for violation of civil rights.
See below for a a video of the incident.
UPDATE: The complaint in this case eventually was dismissed by a federal district judge and that decision was affirmed on appeal. Go here for the story. Reading this story, however, raises several questions for me, the most important of which is why was the case argued the way it was?
It appears that the main argument for the plaintiff was that she was arrested (in violation of her constitutional rights) because she exercised her freedom of speech. I suspect that was the argument so they could make a federal case out of what would otherwise have been a simple state torts claim.
This turned out to be a mistake. From the limited evidence I can see (by which I am admitting that I could be totally wrong if I had all the evidence available), this was, at least on paper, an easy false arrest claim.
The police officer arrested her for "resisting arrest" which is absurd to being with. How can you arrest someone for resisting arrest if she was not being arrested? You can get arrested for something, and then get charged with resisting arrest if there is evidence that you did resist arrest in the process of getting arrested for the conduct you are getting arrested to start.
So the charge used to justify the arrest is nonsense, and the video disproves the allegation. Then, there's the fact that the lawyer was released and not charged with anything. The police simply arrested her so they could get her out of the way and talk to her clients without her being present.
In dismissing the complaint, the judge concluded that there was enough probable cause to conclude that the lawyer was "obstructing justice" or interfering with a valid police investigation.
I don't think so but even if that is the case, that conclusion does not support the court's decision because that is NOT what the lawyer was arrested for. If she had been arrested for and charged with obstruction of justice, that argument may have been a valid way to retroactively justify the arrest; but those were not the facts.
Even if there was probable case to arrest for obstruction of justice, the arrest was for something else. Therefore, the arrest was not valid.
CNN is reporting that last Thursday five individuals arrested recently in Ferguson, Missouri, filed a lawsuit against Ferguson Police Chief Thomas Jackson, St. Louis County Police Chief Jon Belmar, Ferguson officer Justin Cosma, several unnamed officers and the city and county governments asking compensation for injuries caused by the police during the recent events in Ferguson. The complaint includes claims for intentional infliction of emotional distress, negligence, assault and battery. The CNN article has more details.
A few days ago I posted a comment on a story about the arrest of a woman in Austin, Texas. Much of the discussion was about the police's conduct, but as I pointed out, there is a torts angle to the story because the Police Chief essentially admitted to a false arrest.
Now comes another story which is just as bad, if not worse!
A couple of days ago Res Ipsa Loquitur posted a comment criticizing Autin's police department's so-called "take no chances policy" which they apparently use to arrest citizens even though they have not committed any crimes just because the police wants to make sure they don't go on to commit crimes in the near future (I guess). Sounds like the movie Minority Report to me ... "you are under arrest for the future murder of so and so....", But I digress...
In any case, the story is that Austin police pulled over a man for running a red light. No problem there. But then the police asked the man to take a voluntary breath test. He consented and blew a 0.0. He also agreed to a blood sample and was later cleared of drugs. Having shown he was not intoxicated or under the influence of drugs, he was arrested anyway and spent the night in jail.
The story does not state what he was arrested for, but I doubt that you can be arrested and "sentenced" to a night in jail for running a red light. The police officers apparently claimed they had a reasonable suspicion that the suspect was under the influence of a drug not covered by the test and did not want to take a chance. Such is the "take no chances policy", apparently. The police think you did something wrong, so they have the right to arrest you for it, even if there is no evidence of it other than a mere suspicion. The story also states this is not the first reported incident under this "policy." The cases are routinely dismissed but not after citizens have to spend the night in jail.
If these allegations are true and if there really is a customary practice based on this so-called policy, someone should start a practice specializing in false arrests in Austin! (Just make sure you don't mention you specialize, but that is another story.)
One of my students sent me some links to a story out of Austin, Texas that illustrates a number of interesting points, including why a client should not address the media before talking to his lawyer. The case is very similar to Enright v. Groves, a case that you probably read in law school on the basic principles of the tort of false arrest. You may have heard the story, which apparently has been going around the internet for a few days, but here it is just in case.
According to the news stories I have read, it sounds to me the police set out to catch (and ticket) jaywalkers at a certain intersection. A young lady came by jogging while listening to music through earphones and did not stop for the "do not walk signal." After she crossed the street, an officer told her to stop but she didn't. The officer then chased her down and detained her. Exactly how that happened is subject to debate but the fact is she was pulled by the arm, detained, handcuffed and was taken to a police car. Some of this was caught on video and photos. Later, in response to the reaction to the story, the Chief of Police declared that the woman was arrested for "failure to identify" not for "resisting arrest." He also said that she went to jail because she failed to answer a question she was legally obligated to answer.
Here is the problem: the Chief is wrong. According to the law, the police can't arrest someone for failing to produce an ID on demand. They also can't arrest you for refusing to identify yourself at their request. The statute in question states that "a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information." In other words, the offense is only committed if the person refuses to identify herself after they have been lawfully arrested. Arresting someone for failing to identify herself, without more, is not a lawful arrest. Bottom line, the woman had no duty to answer the question and the police had no legal authority to put her under arrest for it.
If the police had arrested the woman for something else (like jaywalking or resisting arrest) with probable cause, then she could be charged under the failure to identify statute. But the Chief admitted publicly and in camera that that is not what happened. In the televised press conference, he clearly stated (more than once) that the woman was arrested for failing to identify herself, and that "that" is why she spent time in jail.
Well, Chief, you just handed her a claim for false arrest (at least) on a silver platter!
Prof. Jonathan Turley is reporting today that Police in Fort Lee, New Jersey are accused of locking a group of teens in a police van without heat (temperature was in the 20s) for 14 hours. The teens were rounded up at high school house party over the weekend and apparently forgotten until a passerby heard them screaming. The kids had to go to the bathroom in the crowded van. How many different types of claims do you think the teens could support based on these facts? For more go here and here.
Readers familiar with the Prosser Torts textbook might remember Enright v Groves, the case used in the book to illustrate the concept of false arrest. In that case, an officer of the law arrested a woman when she refused to show him an ID after he had spotted her walking a dog without a leash.
Yesterday, the Baltimore Sun published a similar story. In this instance, a lawyer arrived at a courthouse about 20 minutes before closing time to file some documents in the clerk's office. In a hurry, he refused to show an ID to a police officer who was serving as courthouse security guard. He was arrested, left in a hot police car until he vomited, and transported to the police station where he was cuffed to a basement pipe. The charges were later dropped and he has now filed a $700,000 lawsuit claiming false arrest, false imprisonment and assault. Go here for the full story.
Interestingly, the story says the officer said the plaintiff did not look "lawyerly." I wonder if that is a tacit admission that officials only ask people who have a certain "look" for IDs. Wouldn't that be a good question to ask during discovery? Someone should tell this guy to stop talking to the press.
Those of you familiar with the Prosser Torts textbook might remember Enright v Groves, the case used in the book to illustrate the concept of false arrest. In that case, the plaintiff was arrested after she refused to produce an ID when ordered to do so by a policeman -- which he had no authority to do.
I thought of that case when I read a story today about Minnie Carey, then 61, who was arrested, cuffed, and thrown in jail for challenging the authority of a policeman who told her and other women to go away. According to the story, the women were standing outside of a convenience store talking when the cop pulled up in a cruiser and told them to “move it.” Carey replied by asking "why?" and the cop said “because I said so.” She was first held in a patrol wagon and then jail for nine hours. She is a diabetic and went without food until she returned home. She was charged with disorderly conduct. The Citizen Review Board found that the cop falsely arrested Carey. For the full story, click here.
Thanks to Prof. Jonathan Turley for the the story. See here.
Just in time for our class discussion on False Arrest, the National Law Journal.com is reporting that a Massachusetts lawyer is suing three Boston police officers and the city in Boston federal court for arresting him after he used his cellphone to record an arrest. Go here for the full story.
A head emergency room nurse at Advocate Illinois Masonic Hospital has sued the city of Chicago and a Police officer for violation of her civil rights when the officer handcuffed her and putt her in the back of a squad car for 45 minutes after she refused to draw blood from a suspected drunken driver. As so often happens these days, the cop forgot there are cameras everywhere and his actions were caught on video. The full story and the videos are available here.
Prof. Jonathan Turley has more on the story here.
Thanks to Louis Raymond for the link.
Jonathan Turley reports today that the parents of a student at Greenfield Middle School in Brookfield, Wisconsin have filed a $50,000 calim against the school for false imprisonment and battery because the school gave their daughter a “time out.” The full story is available here. Maybe I should be worried. If this claim is recognized, I am going to have to make sure we have "parental immunity"!
A Chicago man is suing the Chicago police department after officers arrested him without probable cause and then held him for six months in jail. During that time he lost his job and missed the birth of a child. The suit alleges that the prosecution was malicious and caused emotional distress. One of the arresting officers was stripped of his police powers in 2008 for his involvement in another false arrest and plot to frame his estranged wife. The full story is available here.
Thanks to Jonathan Turley for the information.
