Civil Rights

Published on: March 4, 2019

Civil right claim fails for a victim of a prosecutor’s defamatory statements

After serving seven years in prison for a kidnapping and rape conviction, a DNA test revealed that Echols’s DNA did not match the semen recovered from the victim. His conviction was vacated by a Georgia trial court and the local district attorney, Spencer Lawton, declined to retry the case causing it’s dismissal. A state legislator later introduced a bill to compensate Echols to compensate Echols for his wrongful convictions, but Lawton wrote a letter and memorandum to several of the legislators opposing Echols’ compensation falsely stating that Echols remained under indictment. As a result of Lawton’s correspondence, the bill failed. Echols filed a 1983 lawsuit against Lawton for violating his rights under the First and Fourteenth Amendments. The trial court dismissed the lawsuit based on its finding that Lawton had qualified immunity protection from the lawsuit.

In Echols v. Lawton, the court of appeals rejected Echols’ s appeal from the trial court’s dismissal of his claim. It agreed that Echols stated a valid claim for retaliation under the First Amendment. A claim for First Amendment retaliation requires the plaintiff to allege that he engaged in protected speech, that the official’s conduct adversely affected the protected speech, and that a causal connection exists between the speech and the official’s retaliatory conduct. Here it was alleged that Lawton retaliated against Echols by his speech to the members of the legislature. Lawton’s speech contained defamatory statements that were libel per because it falsely stated that Echols had a criminal case pending against him. The court rejected Lawton’s to invoke the First amendment protection because it does not protect an official’s defamatory speech from a claim of retaliation.

Published on: February 14, 2019

A Fourth Amendment violation to repeatedly taser an arrested person who is not resisting

by The Swartz Law Firm

Bob Glasscox sued Officer David Moses and the City of Argo, Alabama under 42 U.S.C. 1983 for excessive force in violation of the Fourth Amendment for injuries he received when Officer Moses tased him four times in rapid succession. Glasscox, a type 1 diabetic, suffered a severe hypoglycemic episode while driving his pickup truck on Interstate 59 near Argo, Alabama. His condition caused him to begin driving erratically, and after other drivers reported his erratic driving Officer Moses was dispatched to the scene. The events that unfolded were captured on his body camera.

Published on: December 19, 2018

Officer had no probable cause to make an arrest

by The Swartz Law Firm

In this case civil rights action Cozzi was arrested for robbing one pharmacy and for the attempted robbery of another. After he was released because the police found no evidence linking him to the crimes, he sued an officer of the City of Birmingham Alabama and several other law enforcement officers alleging a violation of his Fourth Amendment right to be free from an unlawful arrest pursuant to 42 U.S.C. 1983. The district court denied the officer’s summary judgment motion and the officer took this appeal arguing that he was entitled to qualified immunity on that claim because he had arguable probable cause to arrest Cozzi.

The only issue the court had to resolve was whether the officer is entitled to qualified immunity from Cozzi’s claim that the officer violated his Fourth Amendment right to be free from unlawful arrest. To invoke the qualified immunity doctrine the officer has the initial burden of showing he was within his discretionary authority. The officer met this burden without dispute. The burden then shifted to Cozzi to show that the officer violated his constitutional right and this right was clearly established at the time of the alleged violation.

For the arrest to be in compliance with the Fourth Amendment, the officer needed arguable probable cause to make the arrest. Whether a reasonable officer could have believed he had probable cause to arrest depends on the totality of the circumstances.

Published on: December 14, 2018

Probable cause to arrest means no civil rights violation

by The Swartz Law Firm

The lawsuit by Livingston Manners claiming federal civil rights violations by several police officers from the City of Hollywood for excessive force, malicious prosecution and a common law false arrest was ultimately rejected. This is how the facts unfolded.

At 3:00 in the morning Manners was sitting in his car on the side of a residential street in Hollywood Florida getting ready to drive to work when Officer Cannella drove by. The officer was patrolling the area in response to recent theft crimes in the area. As Cannella passed, Manners drove off. Believing that he saw Manners run a stop sign, Cannella made a u-turn and began following Manners about four or five blocks before activating his lights and siren. It was undisputed that Manners did not stop when he saw Cannella’s behind him with lights and siren. Manners explained that he was afraid, so he continued driving and until he reached a well-lit gas station where there was surveillance and there he pulled over.

Canella approached and informed Manners he was under arrest and ordered him to stay seated in the car. According to video taken from the surveillance cameras, a physical struggle took place when Cannella attempted to arrest Manners and place him into custody. Eventually other officers arrived while the struggle was underway, and Manners was tazed and eventually subdued.

Published on: December 6, 2018

Disciplinary sanctions and Title IX procedure by Valencia College found Constitutional

by The Swartz Law Firm

The issue disputed in Koeppel v. Valencia College was whether Valencia College violated Jeffrey Koeppel’s statutory or constitutional rights when it suspended him for his harassing conduct against another student. Koeppel’s suspension followed an investigation by the Valencia Dean of Students after a “Jane Roe” lodged a complaint about messages Koeppel had been sending her. The investigation showed that he sent Jane Roe dozens of messages making lewd reference to her body and send these unwanted massages over a period of days. He continued to contact her despite her repeated pleas that he stop contacting her and after the Dean issued an order that he not contact her.

After the Dean determined that Koeppel likely violated the school’s Code of Conduct for four types of conduct prohibited by the Code, a disciplinary hearing was held by the Student Conduct Committee. At a hearing held by the Committee they reviewed the evidence of the text messages and questioned Koeppel about his messages. It concluded he was responsible for the charged conduct and suspended him for attending the college for one year.

Published on: October 25, 2018

Taking a cell phone for merely recording an incident is a Fourth Amendment violation

by The Swartz Law Firm

The issue here is whether a police officer seizing a cell phone from someone recording an incident violates the Fourth Amendment. In this civil rights appeal, the Martin County Sheriff’s Office Deputy Beatty claiming he was entitled to qualified immunity for seizing the plaintiff’s iPhone after from Crocker after he took photos and videos of a car accident crash scene from where he stood on the interstate grass median. The district court denied his motion for summary judgment and he took this appeal.

Crocker stopped while driving on Interstate 95 in Martin County, Florida when he observed an overturned SUV. Soon after he stopped, emergency personnel arrived but he remained in the interstate median about fifty feet from the SUV. Crocker then took out his cell phone and proceeded to take photos and videos of the scene that included images of empty beer bottles, the overturned vehicle, and firemen. About thirty seconds after Crocker started using his camera, Beatty walked over to him, reached out from behind him without warning or explanation and took the iPhone out of his hand. When asked by Beatty why he was on the scene Crocker explained that he had stopped to assister before first responders had arrived. Beatty told the plaintiff to leave and the plaintiff agreed to but wanted his cell phone back. Beatty replied that the photos and video on the phone were evidence of the state and the plaintiff would need to drive to the nearest weigh station to wait for instruction about the return of his phone after the evidence could be obtained from it.

Published on: October 16, 2018

Warrantless entry and limited search of a home by officers was justified by the exigent circumstances

by The Swartz Law Firm

In this civil rights action Montanez sued the Volusia County Sheriff’s deputies for the warrantless entries into the plaintiff’s house, the deputies appeal the district court’s denial of their summary judgment motions for a dismissal. In their challenge they claim that the brief searches were justified by exigent circumstances. The warrantless searches here arose when a deputy driving his unmarked car through a neighborhood that had a rash of daytime robberies saw a man behind a house who appeared to be looking around nervously while talking on the cell phone. He saw a second man approach the first man and begin huddling with the first man. The officer was convinced they were planning a break-in of the house.

Officer called for backup and when backup arrived they approached the men and handcuffed them. One of the deputies, Raible, entered the back door. Without crossing the threshold he leaned into the doorway and announced he was with the sheriff’s office and directed anyone in the house to come out.

After searching the two individuals they found two kitchen knives they believed were used to pry open the doors after having seen what they believed were fresh marks on the door jam. When additional officers arrived they decided to enter the home a second time to look for additional perpetrators or potential victims. The second entry was the first into the homes interior and which the officers described as a sweep, which lasted 4 minutes. During the second sweep the officers saw in plain view what they believe to be marijuana and drug paraphernalia.

Published on: May 10, 2018

False arrest claim against Atlanta Police officer denied

by The Swartz Law Firm

The Eleventh Circuit rejected Austin Gates’ federal civil rights claim against three City of Atlanta Police officers for arresting him without probable cause during a protest in downtown Atlanta. Gates claimed the arrest was in violation of the Fourth and First Amendments of the Constitution as well as various Georgia state court laws. Gates participated in a march protesting a grand jury’s decision not to file charges in the Ferguson, Missouri police-shooting. During the protest he was given a “V for Vendetta” mask by another protester. The mask was a stylized image of the Guy Fawkes character from the movie “V for Vendetta” and designed to cover the entire face. He and other protesters wore the same masks to express his disagreement with the grand jury’s decision and to maintain anonymity during the protest. At some point during the protest Defendant police chief Whitmire ordered the protesters to remove their masks multiple times over a loudspeaker and warned that any mask-wearing protesters would be arrested. After the warning, Whitmore issued orders to arrest any protesters wearing masks and the plaintiff was arrested. When asked why he was being arrested, the defendant officer did not immediately respond and after conferring with other officers, he was told the arrest was for wearing a mask. Gates followed with this complaint against the City and the officers pursuant to section 1983.

Published on: May 31, 2016

Deputy sheriff loses qualified immunity protection from false arrest lawsuit

by The Swartz Law Firm

In this Civil Rights claim Carter along with two other plaintiffs sued the Butts County, Georgia Sheriff office and a deputy sheriff for false arrest, claiming the Sheriff violated the Plaintiffs’ Fourth Amendment right to be free from unreasonable search and seizures.

These are the facts leading to the Plaintiffs’ arrest. When the deputy’s home had fallen into foreclosure, the mortgage holder advised the deputy that the home would sold in a foreclosure sale. After the deputy moved out of the property, the property was turned over to a maintenance company to prepare the property for resale. The deputy was given notice, and the authorized representatives of the entity handling the sale, the plaintiffs, had entered the house to clean and prepare for the sale. The deputy arrived at the house and ordered the plaintiffs to leave. The plaintiffs tried to show him credentials and documentation of the eviction. The deputy contacted the court clerk and learned there was no eviction proceeding against him. He ordered their arrest for burglary, criminal trespass, and theft, and all three went to jail.

The trial court denied defendant deputy’s motion for summary judgment in which he argued for qualified immunity protection against the claim against him and it denied the sheriff’s summary judgment motion on the conversion claim. As to the remaining claims the trial court granted summary judgment. The Defendants appealed from the trial court’s rulings.