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Were you one of those peaceful protestors this summer who had the crap beaten out of them by a baton-swinging cop from the NYPD?
If you or a loved one was arrested or injured by the NYPD, there is a good chance that you were the victim of unlawful police misconduct and you are now are entitled to money damages from New York City.
WHILE SHOCKING AND DISTURBING INCIDENTS OF BRUTALITY involving the NYPD during the recent and ongoing Black Lives Matter demonstrations are getting plenty of attention thanks to the brave demonstrators’ who have captured graphic images of this violence on their cellphones for all the world to see, police brutality and false arrests are nothing new. There have always been some rotten apples on the NYPD and perhaps we should all be glad that there are not more of them.
After all, the NYPD currently employs over 34,500 uniformed police officers. That is more cops than most armies have soldiers. It’s a heck of a lot of individuals to be properly screened to vet for psychiatric and personality disorders, not to mention screening for just plain old angry malcontented people who may be attracted to the idea of wielding power, authority (and a baton).
With so many cops out there, it is inevitable that unqualified, angry and sometimes even psychologically disturbed individuals are going to slip through the NYPD's application process only to then be given a badge, a nightstick, some pepper spray, handcuffs and—heaven forbid--a loaded firearm.
There are also those “good”, well-meaning cops who may simply overreact to a stressful situation and perhaps--out of inexperience or lack of training--arrest someone without probable cause or even use excessive force.
In any case, there are plenty of ways that NYPD cops out there can use poor judgment, act unreasonably, become overly aggressive and mistreat or injure the people that they are entrusted to protect. An innocent civilian might have done absolutely nothing wrong except have the bad luck to be in the wrong place at the wrong time and cross paths with one of these bad actors. Or just peaceably demonstrating
Whether a person is wronged by a well-meaning cop who just made an error in judgment or by a truly bad cop who is an angry baton-wielding bully or even a psychopath, there is help for those innocent and helpless victims of NYPD police misconduct.
People who feel they were the victim of false arrest or police brutality have options: They can file a complaint with NYPD internal affairs. If they believe that the officer committed a crime, they can report it to the District Attorney's office in the borough where the incident occurred.
They can also contact a lawyer who can then file a notice of claim with New York City and if the claim is not adequately addressed, they can file a lawsuit against the police officers and New York City.
Bringing instances of police misconduct to the attention of those who can help is perhaps the only way to prevent something similar from happening again.
NYPD misconduct claims can be based on several theories of wrongdoing:
False Arrest-- Being arrested is a horrible, humiliating and sometimes even dangerous experience for anyone. But it is especially bad for those who are arrested without having done anything wrong. You may have a valid false arrest claim against NYC if you were arrested by the NYPD without the NYPD having sufficient probable cause to believe that you committed a crime. Arrests without probable cause happen more than many people think. Probable cause means that there are enough facts for a reasonable person to believe that a crime has been committed. If you did nothing wrong and were still arrested by the NYPD, it is perfectly reasonably for you to be mad as hell about it.
Excessive force-- Members of the NYPD may have the right--under certain circumstances--to arrest you. HOWEVER, they NEVER have the right to physically abuse you! If a member of the NYPD used physical force against you and the force was unreasonable, then you may have a valid excessive force claim which would entitle you to money damages from New York City
A claim that a member of the NYPD used excessive force during the course of an arrest is analyzed under the objective reasonableness standard of the Fourth Amendment. The reasonableness of a particular use of force is judged from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and takes into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether a person is actively resisting arrest or attempting to evade arrest by flight.
In other words, when an average citizen is roughed up or injured by the NYPD, chances are they may have a valid claim for excessive force.
False Imprisonment. New York law states that any arraignment not held within 24 hours of arrest is presumptively unreasonable. That means that even If a person is arrested lawfully, if they are not brought before a judge within 24 hours, the police have to provide a reasonable explanation for the delay. Otherwise, the individual may be entitled to damages.
Malicious prosecution--If the NYPD or city prosecutors pursue legal action against you without probable cause, you may have a malicious prosecution claim. To win this type of claim, you must show three things:
1. NYPD commenced a criminal proceeding
2. The proceeding ending in your favor (dismissal, acquittal)
3. there was no probable cause for the proceeding in the first place
Section 1983 Actions against the NYPD for police misconduct can be brought under a law called 43 U.S.C.S. 1983. This is a Federal law which states in substance that every person, who under color of any statute of any State or Territory deprives a person of their constitutional rights shall be liable to the person injured in an action for money damages.
Pursuing NYPD Misconduct claims:
Whether excessive force, false arrest, malicious prosecution or Section 1983, these claims must be pursued in a timely manner.
The Notice of claim: For New York State claims such as false arrest and false imprisonment, a notice of claim must be filed with New York City within 90 days of the incident to preserve these claims.
After the notice of claim is filed a 50H hearing is held.
50-h hearings allow the New York City Lawyers to take testimony from a claimant that assists in the investigation of a case. The testimony taken during a 50-h hearing can be used at a trial. New York City may also use the testimony to make a pre-suit offer to the claimant
New York City has 90 days from receiving the Notice of Claim to conduct a 50-h hearing. If New York City demands the hearing, a claimant must appear. A claimant cannot begin a lawsuit until after appearing at the 50H hearing. If the municipality or agency does not demand a hearing within 30 days of filing the Notice of Claim, a claimant can start lawsuit immediately although they may have to appear for the hearing after filing suit.
Remember that filing the notice of claim and appearing at the 50H Hearing does not mean that the lawsuit has started.
Also, remember that Federal 1983 actions are not subject to the notice of claim requirements but have other time requirements. In any event, if you believe that you have been the victim of a false arrest, excessive force or other misconduct at the hands of NYPD, you should contact a lawyer immediately to evaluate your claims and ensure that any potentially valid claims are preserved.
IN MANHATTAN, WHILE AN ACD ADJOURNMENT IN CONTEMPLATION WILL PRECLUDE A MALICIOUS PROSECUTION CLAIM IT WILL NOT PRECLUDE A FALSE ARREST CLAIM
In Eke V. City of New York, the First Department held that:
"While a plaintiff's acceptance of an ACD precludes a claim for malicious prosecution, it “does not interdict an action for false imprisonment” ( Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 423, 461 N.Y.S.2d 765, 448 N.E.2d 432 ; see Scherr v. City of Lackawanna, 79 A.D.3d 1785, 913 N.Y.S.2d 602 [4th Dept.2010] ). To the extent that our decisions in Molina v. City of New York, 28 A.D.3d 372, 814 N.Y.S.2d 120 (1st Dept.2006) and Hock v. Kline, 304 A.D.2d 477, 758 N.Y.S.2d 640 (1st Dept.2003) hold that acceptance of an ACD prevents the latter claim, they are no longer to be followed."
This means that an ACD is no longer a bar to recovery from a false arrest.
Proving Your Case of excessive force or false arrest against the NYPD
If you have suffered from police misconduct and are considering making a claim, you should try to preserve any evidence of any damages that you have suffered. If you were visibly injured, you should try to take photographs of the injuries. Seek medical attention and get the doctor and/or hospital report. Get the names and numbers of any witnesses to the event or to the injury. If there is video of the encounter that led to the incident, preserve it. Video evidence is often extremely powerful and perhaps that is why a legislator in Texas is trying to send citizens to jail for taping instances of police brutality.
If you want to discuss a potential claim against the NYPD you can call me, Robert Briere, at 212-786-2999 to discuss your case.