Our son was "mistakenly" thrown in jail for 2 days. The arresting officer sighted him for a criminal charge and had him brought to county jail. After 2 days there, he was released. We called the detective to find out the story. He told us it was actually a civil charge and should have never been areested, just summons. After a disput on the phone about why the officer didnt know a civil from a crimanl charge, the detective simply said get a lawyer. We did, and after several hundred dollars he called to say it wasnt worth doing anything. Whats the real story?
Violating Civil rights
- Thread Starter arphoto
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CdwJava
Moderator
The real story may be that the damages are not worth pursuing.
If your son has an attorney who is telling him that there is not much money to be gained here, then it may be more of a personnel complaint than anything else. I would also think that the jail should have figured out the difference, too.
No one hear can tell you "the real story" because we cannot possibly know. But, if his attorney cannot see this as a good case to pursue, then that is probably a good sign that it's not a big one. But, your son can always pay for an attorney sue if he wants to in the hopes that he will receive enough to pay the attorney's fees.
- Carl
If your son has an attorney who is telling him that there is not much money to be gained here, then it may be more of a personnel complaint than anything else. I would also think that the jail should have figured out the difference, too.
No one hear can tell you "the real story" because we cannot possibly know. But, if his attorney cannot see this as a good case to pursue, then that is probably a good sign that it's not a big one. But, your son can always pay for an attorney sue if he wants to in the hopes that he will receive enough to pay the attorney's fees.
- Carl
So...is this something that happens often? What we really want is an apology, which I know coming from a police dept, would be unrealisitc. But I would love an article in the paper stating the police made the mistake, after all they had no problem printing his name when it happened. Alittle embarrassing for the entire family. I am looking for a way to get the word out that my son isn't a criminal as it appears to look like to the public. You know, when people read his name, they automatically put him on a mental list with Jeffrey Dalmer!
CdwJava
Moderator
You can certainly ask tyhe paper to run a story on it, and even ask the police for an apology. Since my state does not have civil infractions, this is something I can not even guess on the frequency of. Out here, everything is criminal.
- Carl
buckminster
New Member
In my state, public employees enjoy immunity from lawsuits in the performance of their duties if they are acting in "good faith". Even if they are negligent, as long as there is no intent or malice shown, you are SOL.
Now if they really screw up, the only thing you can do is sue the local govt agency in federal court, if your civil rights were violated or there was an ADA law broken. You can recover damages but two days in jail won't be worth much
Now if they really screw up, the only thing you can do is sue the local govt agency in federal court, if your civil rights were violated or there was an ADA law broken. You can recover damages but two days in jail won't be worth much
Scooterdog
New Member
False arrest, false imprisonment, neglegence, official misconduct, intentional infliciction of mental distress. Hu, guess everyones right, you don't have a case.
False imprisonment claims gernerally include the unlawful arrest of detention of a person without a warrent, or by a falsely issued warrant, in a prison or other confinement, or seizure by force and constraint without confinement but with the deprivation of personal liberty. See Jordan v. Pike 302 Mass. 281 (1939).
The elements of a a false claim include;
1- An unlawful restraint upon the victim's freedom by the imposition of fource and threats.
2- Damages.
A false arrest is another constitutional tort cognizable under common law of the states.
The statdard for a false arrest is "reasonable grounds." The fourth amendment to the federal constitution protects you from "unreasonable search and seizure" which is in fact a referemce to "arrest" being a seizure of a person.
When government has perticipated in the false arrest or imprisonment, redress is available throught federal civil rights actions.
Once a constitution violation occurs, the public servant loses immunity. They could and would try to hide behind imunity, but it's pretty freagin weak at this point.
File a civil complaint, ask for $10,000 per day, demand jury trial.
Scooterdog
New Member
U.S. Supreme Court
MONROE v. PAPE, 365 U.S. 167 (1961)
365 U.S. 167
1. Allegation of facts constituting a deprivation under color of state authority of the guaranty against unreasonable searches and seizures, contained in the Fourth Amendment and made applicable to the States by the Due Process Clause of the Fourteenth Amendment, satisfies to that extent the requirement of 1979. Pp. 170-171.
2. In enacting 1979, Congress intended to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position. Pp. 171-187.
(a) The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" do not exclude acts of an official or policeman who can show no authority under state law, custom or usage to do what he did, or even who violated the state constitution and laws. Pp. 172-187. [365 U.S. 167, 168]
(b) One of the purposes of this legislation was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance, or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies. Pp. 174-180.
(c) The federal remedy is supplementary to the state remedy, and the state remedy need not be sought and refused before the federal remedy is invoked. P. 183.
(d) Misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action taken "under color of" state law within the meaning of 1979. United States v. Classic, 313 U.S. 299 ; Screws v. United States, 325 U.S. 91 . Pp. 183-187.
3. Since 1979 does not contain the word "wilfully," as does 18 U.S.C. 242, and 1979 imposes civil liability rather than criminal sanctions, actions under 1979 can dispense with the requirement of showing a "specific intent to deprive a person of a federal right." P. 187.
MONROE v. PAPE, 365 U.S. 167 (1961)
365 U.S. 167
1. Allegation of facts constituting a deprivation under color of state authority of the guaranty against unreasonable searches and seizures, contained in the Fourth Amendment and made applicable to the States by the Due Process Clause of the Fourteenth Amendment, satisfies to that extent the requirement of 1979. Pp. 170-171.
2. In enacting 1979, Congress intended to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position. Pp. 171-187.
(a) The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" do not exclude acts of an official or policeman who can show no authority under state law, custom or usage to do what he did, or even who violated the state constitution and laws. Pp. 172-187. [365 U.S. 167, 168]
(b) One of the purposes of this legislation was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance, or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies. Pp. 174-180.
(c) The federal remedy is supplementary to the state remedy, and the state remedy need not be sought and refused before the federal remedy is invoked. P. 183.
(d) Misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action taken "under color of" state law within the meaning of 1979. United States v. Classic, 313 U.S. 299 ; Screws v. United States, 325 U.S. 91 . Pp. 183-187.
3. Since 1979 does not contain the word "wilfully," as does 18 U.S.C. 242, and 1979 imposes civil liability rather than criminal sanctions, actions under 1979 can dispense with the requirement of showing a "specific intent to deprive a person of a federal right." P. 187.
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Thanks for all your replys. After all said and done, the D.A., not exactly willingly and much "hounding" by our lawyer, decided to drop the original 4 days in jail and $1000 fine to just a $500 fine and no jail time since he spent the 2 wrongful days from something else. Personally, I think the original charge for someone who threw a party and "provided a place for minors to drink" is alittle over the top, especially when the minors were all let go without even a slap on the hand. A good message to send to stop under age drinking?? Why not fine everyone? Anyway....thats another topic!!
CdwJava
Moderator
It could be that state law does not cover minors who have attended such a party. And, of course, the state might have decided that the greater offender was the person who actually provided the alcohol to the minors.
- Carl
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