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Thread: 42 USC 1983 claim possible? Let me know your thoughts :)

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    42 USC 1983 claim possible? Let me know your thoughts :)

    As you know, I recently was stopped by a cop who was brandishing his sidearm when trying to get into the DESPP bldg in Middletown when trying to examine documents per a FOIA request.

    The cop blocked my path, brandished his gun, demanded I put down my copier, outside the bldg on the walkway to the entrance.

    I would think, after much reading, that this was a seizure and detainment under the 4th amendment. I also think it a violation of the 1st amendment rights to gather information about the government.

    I just turned around and left ... figuring the worse he could do is shoot me in the back..no resistance to my leaving was encountered.

    think a 42 USC 1983 claim is possible and worth pursuing?

  2. #2
    Regular Member Rich B's Avatar
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    The most typical definition that I am aware of for detainment is not being 'free to go'.
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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by Rich B View Post
    The most typical definition that I am aware of for detainment is not being 'free to go'.
    Have to agree with Rich, if you thought you were free to go enough that you left, then you weren't being 'detained' by the definition of the term.

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    Quote Originally Posted by Rich B View Post
    The most typical definition that I am aware of for detainment is not being 'free to go'.
    In my case they prevented me from getting to an intended destination; and an actual long term detainment is not actually required, at least from my reading of the case posted below


    http://caselaw.lp.findlaw.com/script...=489&invol=593.


    Once a cop blocks your path, brandishes a gun, and barks out a command to put something on the ground which you are carrying, could that be considered a detainment. After all, a reasonable person would think it is. And were my actions past that point in time relevant to what occurred past that .... controlling? .. the question for a court is is "would a person reasonably consider that he is being detained and seized at that point in time?"

    I certainly felt like I was being detained in that moment but felt the detainment was unlawful and left the scene. I imagine the state would have charged me with resisting arrest of they had cause or wished to, right?

    I can see where a seizure or detainment may not result in a prolonged time period of detainment. It can be 1 second or 1 hour...

    Whadda think?
    Last edited by davidmcbeth; 09-27-2012 at 02:51 PM.

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    Regular Member self preservation's Avatar
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    I think that 42USC1983 is nothing more than an unicorn. I have yet to see a gun owner use it and win.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by self preservation View Post
    I think that 42USC1983 is nothing more than an unicorn. I have yet to see a gun owner use it and win.
    http://www.examiner.com/article/fede...-carrying-guns
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    Hi Rich,

    I thought you had one such case ... that still rattling around ?

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Hi Rich,

    I thought you had one such case ... that still rattling around ?
    I replied to you about that in the other thread where you asked the same thing.
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    Regular Member self preservation's Avatar
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    I didn't see in your article were 42USC1983 was mentioned. I could provide you with some win's of kentucky OC'ers but none that have suid under 1983. I didn't say you couldn't win. I just said you don't see many 1983 suits for gun owners/OC'ers.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by self preservation View Post
    I didn't see in your article were 42USC1983 was mentioned. I could provide you with some win's of kentucky OC'ers but none that have suid under 1983. I didn't say you couldn't win. I just said you don't see many 1983 suits for gun owners/OC'ers.
    http://scholar.google.com/scholar_ca...=1&oi=scholarr
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    1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects ...; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.


    In my situation, #1, #2, #4, and #8 was present -- these are just factors the court would consider. Is 4 out of 8 good enough? Who knows. Wondering other people's thoughts on the issue. One can certainly be detained and still leave. Detainment is not imprisonment or being handcuffed or being unable to move.


    And from: http://scholar.google.com/scholar_ca...t=2,7&as_vis=1


    But the law is well established that if the officer asks rather than commands, the person accosted is not seized, and so the protections of the Fourth Amendment do not attach.

    Hence my notion that I was seized.
    Last edited by davidmcbeth; 09-28-2012 at 11:55 AM.

  12. #12
    Regular Member Rich B's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects ...; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.


    In my situation, #1, #2, #4, and #8 was present -- these are just factors the court would consider. Is 4 out of 8 good enough? Who knows. Wondering other people's thoughts on the issue. One can certainly be detained and still leave. Detainment is not imprisonment or being handcuffed or being unable to move.


    And from: http://scholar.google.com/scholar_ca...t=2,7&as_vis=1


    But the law is well established that if the officer asks rather than commands, the person accosted is not seized, and so the protections of the Fourth Amendment do not attach.

    Hence my notion that I was seized.

    You park in my driveway, get out of your car and start walking down my driveway towards my home. I step out of my home, rifle at low ready obviously ready to rock and roll. I say nothing.


    You are not detained. You are free to go. I have committed no 'real' crime (the delirious whims of tyrants aside). I have simply sent you a message that you are not welcome on my property and that I am willing to prevent you from entry by force if necessary.

    I understand the concerns of 'public property' and the implications that a civil servant pulling this stuff indicates.
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    Also Rich, he yelled for me to put down my copier in addition to brandishing. Wouldn't it be silly for a cop to just sand outside a gov't bldg. crouched with his gun in his hand for no reason? Grrrr.. lol

    And you know what would happen if you met someone on your land with a gun ... you'll be getting a visit from the police

  14. #14
    Regular Member Rich B's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    And you know what would happen if you met someone on your land with a gun ... you'll be getting a visit from the police
    That would mean multiple people that day would be met with a firearm and told to leave.
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    Regular Member self preservation's Avatar
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    Thumbs up

    Thank you.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
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    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

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    Quote Originally Posted by davidmcbeth View Post
    As you know, I recently was stopped by a cop who was brandishing his sidearm when trying to get into the DESPP bldg in Middletown when trying to examine documents per a FOIA request.

    The cop blocked my path, brandished his gun, demanded I put down my copier, outside the bldg on the walkway to the entrance.

    I would think, after much reading, that this was a seizure and detainment under the 4th amendment. I also think it a violation of the 1st amendment rights to gather information about the government.

    I just turned around and left ... figuring the worse he could do is shoot me in the back..no resistance to my leaving was encountered.

    think a 42 USC 1983 claim is possible and worth pursuing?
    42 USC 1983 provides federal courts jurisdiction to entertain federal constitutional rights violation claims against states and their localities in federal court, and provides for attorney fee shifting if you prevail. You must first define your cause of action, in other words, what federal constitutinal right were you deprived of? Typically this wold be Fourth Amendment rights. Contact your state bar referral service and other ways of finding attorneys to get your case reviewed.
    Last edited by Mike; 09-29-2012 at 07:28 PM.

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    Regular Member self preservation's Avatar
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    Maybe I read over it or didn't understand the context, but what was the outcome of this case?
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  18. #18
    Regular Member Rich B's Avatar
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    Quote Originally Posted by self preservation View Post
    Maybe I read over it or didn't understand the context, but what was the outcome of this case?
    I linked you to the article discussing the $21,000 settlement.
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    Regular Member self preservation's Avatar
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    Quote Originally Posted by Rich B View Post
    I linked you to the article discussing the $21,000 settlement.
    I guess what I meant to say ask is was there any form of reprimand from the courts to the LEO's? I assume this settlement was paid by tax payers and not the LEO's themselves?
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  20. #20
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    Quote Originally Posted by Mike View Post
    42 USC 1983 provides fedeal courts jurisdiction to entertain federal constitutional rights violation claims against states and their localities in federal court, and provides for attorney fee shifting if you prevail. You must first define your cause of action, in other words, what federal constitutinal right were you deprived of? Typically this wold be Fourth Amendment rights. Contact your state bar referral service and other ways of finding attorneys to get your case reviewed.
    42 USC 1983 does not allow constitutional rights violation cases against the state (the constitution itself forbids this) but it allows one to sue the state employee (in most cases the state will pay the bill) ... so its a round-a-bout way of getting $$ from state.

    And I would go pro se .... I know, fees may be recoverable .. I'd rather do it myself

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    Quote Originally Posted by Rich B View Post
    I linked you to the article discussing the $21,000 settlement.
    Thanks Rich ... 21K is nothing really .. but its something ...

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by self preservation View Post
    I guess what I meant to say ask is was there any form of reprimand from the courts to the LEO's?
    I don't understand your question. How exactly do you think the court would 'reprimand' individual officers?
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    Regular Member Rich B's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Thanks Rich ... 21K is nothing really .. but its something ...
    As with anything, the decision is generally more important than the $$$.
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    Regular Member self preservation's Avatar
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    Quote Originally Posted by Rich B View Post
    I don't understand your question. How exactly do you think the court would 'reprimand' individual officers?
    Not the courts..the departments.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
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    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  25. #25
    Regular Member Rich B's Avatar
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    Quote Originally Posted by self preservation View Post
    Not the courts..the departments.
    How would anyone know what discipline is handed down from the departments and why would departments discipline officers when it was likely their lack of training and/or supervision that cost them the case in the first place?
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