Police Misconduct & Civil Rights

Police officers generally have broad powers to carry out their duties. The Constitution and other laws, however, place limits on how far police can go in trying to enforce the law. As the videotaped beating of motorist Rodney King, in Los Angeles' and several recent cases in – to include the recent indictment of a Maryland police officer for viciously assaulting an innocent citizen with his service pistol, police officers sometimes go too far, violating the rights of citizens. When this happens, the victim of the misconduct may have recourse through federal and state laws. A primary purpose of the nation's civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.
Overcoming Immunity

Being stopped and questioned by police in connection with a crime is an unsettling experience for most anyone. As long as the officer is performing his job properly, however, there is no violation of a suspect's rights. In fact, police are immune from suit for the performance of their jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise due care, is not enough to create liability. Immunity therefore means that in the typical police-suspect interaction, the suspect cannot sue the police. Civil rights remedies come into play for willful police conduct that violates an individual's constitutional rights.
Civil Rights Laws and Police Misconduct

A statute known as Section 1983 is the primary civil rights law victims of police misconduct rely upon. This law was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. It is now called Section 1983 because that is where the law has been published, within Title 42, of the United States Code. Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law. The most common claims brought against police officers are false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force.
False Arrest

The claim that is most often asserted against police is false arrest. Persons bringing this claim assert that police violated their Fourth Amendment right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer's presence.) Even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed.

Malicious Prosecution

A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things: 1) the defendant police officer commenced a criminal proceeding; 2) the proceeding ended in the victim's favor (that is, no conviction); 3) there was no probable cause; and 4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.

Excessive Force

Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, involving serious physical injury or death. Whether the officer's use of force was reasonable depends on the surrounding facts and circumstances. The officer's intentions or motivations are not controlling. If the amount of force was reasonable, it doesn't matter that the officer's intentions were bad. But the reverse is also true: if the officer had good intentions, but used unreasonable force, the excessive force claim will not be dismissed.

Failure to Intervene

Officers have a duty to protect individuals from constitutional violations by fellow officers. Therefore, an officer who witnesses a fellow officer violating an individual's constitutional rights may be liable to the victim for failing to intervene.

The Qualified Immunity Defense

Defense attorneys representing a police officer for any of these claims will raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer's conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim's constitutional rights, and produced some injury or damages to the victim.
Police Misconduct: If You Have Been Affect

Civil rights claims are an important part of our legal system, providing a balance between the duty of law enforcement to uphold the laws, and the rights of individuals to be free from police misconduct. Yet cases against police officers can be difficult. Officers may be immune from suit, even though an individual feels he or she was mistreated. Claims against police departments can also be expensive to bring because a lot of evidence must be secured, including records, statements of police, statements of witnesses, and various other documentation, to prove the misconduct.
The evidence supporting your claim is the most important element in a police misconduct suit. If you feel you have been the victim of police misconduct, contact our office promptly at 301-218-9400 so that we can act to protect your rights. If anyone in the area may have taken video, such film is critical to success. Many successful prosecutions of police misconduct arise from video evidence. Take photographs of any injuries or damage caused by the police, and set aside clothing or other objects that was torn or stained with blood from the incident. Try to get the names and addresses or telephone numbers of anyone who may have witnessed the incident. Also, write down exactly what happened as soon as you can, so that you don't forget important details.

WHEN IS A GIFT NOT A GIFT?

By Evann O'Donnell, Esq.

When you receive a gift, do you expect to give it back?

Generally, a gift is given without expectation of reciprocation or further action on your part- you could throw it out, sell it, or even re-gift it (hopefully not back to the same person!).  A contract, on the other hand, is a bargain for exchange:  you trade a good or service for something of similar value.  

But what if you receive a gift… that has a condition?  A conditional gift is one that is subject to or dependent on a condition.  Maryland common law holds that conditional gifts must be honored, but thankfully these gifts-with-strings-attached do not happen often in our culture.  In order  for the condition to be enforceable in a court of law, it must be clearly expressed  or known prior to transferring the gift.  If you accept the gift knowing the condition, you have accepted the condition as well.  An example of an expressed conditional gift could be:

1. “I’m giving you this car on the condition that you pass your first semester of college.”
2. “My estate will transfer to you in the event that the Detroit Tigers win the World Series by 2020.  If they do not, it will go to your sister.”
3. “I leave Melissa my very best sewing machine, on the condition that she sews one new quilt a year for  five years.  If she does not, it will transfer to Jake.”

The “expression” can be either written or oral, though it is much easier to enforce (or protect) a conditional gift when the condition is in writing and signed by the giver.  

But what about the second way a condition is given- where it is simply “known”?  This is very rare in our culture.  The most common (and frankly, one of the only well-known) implied conditions is the engagement ring.  When you accept an engagement ring, you have agreed to the condition to marry the person who proposed.  Maryland has found that this amounts to an implied conditional gift.  And so if the recipient of the engagement ring breaks off the engagement... that’s right, in Maryland you have to return the ring!  

But the important element of the conditional gift is that both people know of the condition, whether it is simply known or stated outright, prior to the gift.  When a condition is not stated, but is simply known, you may have a much more difficult time proving that the condition was known if the receiver of the gift later fails the condition and refuses to return the gift, resulting in large legal fees and major headaches.  For instance, what if you believe the implied condition of the gift you gave is known in your religion- and that of the receiver of the gift- but they later claim they never heard of that particular religious teaching? You may need to hire a religious scholar to testify at your trial to convince the court that the condition is so well known in your religious community that the receiver could not possibly be ignorant.  As you can imagine, it is difficult to prove what someone may or may not know- especially where they may have the motive to lie in order to claim a conditional gift was unconditional.  Other examples of implied conditional gifts:

1. Sarah’s family has a generations-long tradition that everyone in the family follows: you are given a car when you turn 16, but if you ever miss the Sunday family meal, it is revoked.  Sarah has seen several family members miss the meal and then lose their car.  Sarah is given the keys to a new car at age 16, but no mention of the well-known condition is necessary.
2. Andre is a part of a religious group with a well-known tenet that wedding gifts are conditioned on the marital success-- meaning, you never divorce.  Should the parties divorce, all gifts are revoked.  Andre has been raised in this religion since birth and has read the religious texts that mention this tenet.  

Once you have satisfied the condition, whether implied or expressed, the giver cannot revoke the gift later.  The condition is the only obstacle to acquiring your gift.  So to go back to the engagement ring example: if you marry, but later divorce, do you have to return the ring?  No: you have satisfied the implied condition: to marry.  Just because you may later disappoint the giver does not mean they can demand a return of a gift.

If you have questions about a gift that you believe may be conditional, do not hesitate to call our office at 301-218-9400.  In an increasingly diverse society - with different religions such as Hinduism introducing new customs of gift giving to our culture - we have had the opportunity to address the issue of dowry (marriage related gifts) at trial. In doing so we have used expert testimony to ensure our clients prevail. We can assist in determining whether a gift is conditional, or help you put your conditions into writing to prevent misunderstandings and litigation later.  Preparation can ensure your wishes are carried out exactly as you hoped.  

Free Speech In the Aftermath of the Charlie Hebdo Massacre

Daily Telegraph; by Christopher Booker

As the dust begins to settle on those recent horrendous events in Paris, a clearer sense of perspective is starting to creep in round the edges. The Pope suggests that those who are too provocative to Islam can expect “a punch”. And even a co-founder of Charlie Hebdo says that its murdered editor’s urge to provoke had “dragged the team to its death”.
As the original editor of Private Eye, who over the years has probably contributed as many words as anyone to its “satirical” pages, I’m afraid that I have looked askance at much of what has been said and written about these events in recent days.
When David Cameron announced on Twitter that he was joining that vast rally in Paris “to celebrate the values of Charlie Hebdo”, one wondered whether he had even previously heard of that little magazine, let alone looked at its pages. Did he really wish to celebrate crude cartoons showing a naked Mohammed with a star coming out of his bottom, captioned: “A star is born”? Or another, captioned “The film that embraces all the Muslim world”, showing a naked Prophet holding a camera to his bottom, saying: “And my ass? You love my ass”?
Did our Prime Minister really want to applaud a picture of the Pope, scantily clad as a Rio prostitute, saying: “Ready for anything to win some clients?” Even these are only among the images available online. A friend living in France tells me of others even more dubious, showing Jesus masturbating, or the Virgin Mary engaging in sexual acts.
If this is meant to be “satire” that only someone without “a sense of humour” would find offensive, I suppose some might point to that strain of British cartooning exemplified by Gerald Scarfe. For decades, he has repeated images of some powerful man exposing his bottom to a lesser figure trying to kiss it. At different times, these might have represented Harold Wilson grovelling behind President Lyndon Johnson, or Tony Blair likewise behind President Bush, or David Cameron with Rupert Murdoch.

How ironic, one thought, that this mass demonstration in favour of “the freedom of the press” should take place in a country whose “Ministry of Culture” has lately detailed the huge state subsidies given to France’s leading newspapers, to help keep its press more cowed and tightly controlled than any west of Russia.
In a time when there is such pressure to prevent people saying things that do not conform with group-think – when every kind of “political correctness” rules; when Christians are arrested for quoting the Bible in the street, for fear of giving “offence to minorities”; when boarding-house owners are prosecuted for not wishing to let rooms to gay couples; when there are calls for “climate change deniers” to be sacked or put on trial; when judges repeatedly threaten people with imprisonment for trying to expose the travesties of justice in their “child protection” system – who really knows what “freedom of speech” is any longer?
There has been no better comment on the clouds of humbug recently billowing in all directions than the admission of BBC employees that they are under an edict from apparatchiks on high that they must not on any account describe to their audiences the contents of any of those Charlie Hebdo cartoons.
It is the kind of thing that made me want to put a collective photo-bubble on those shots of the politicians leading two million people through the streets, all in grey unanimity, intoning the words of the old song, “Clap hands, here comes Charlie”. They didn’t really have the faintest idea what they were talking about.