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

davidmcbeth

davidmcbeth

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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?
 
davidmcbeth

davidmcbeth

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Rich B said:
The most typical definition that I am aware of for detainment is not being 'free to go'.
Click to expand...

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/scripts/getcase.pl?court=us&vol=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?
 
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Rich B

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davidmcbeth

davidmcbeth

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Rich B said:
http://scholar.google.com/scholar_case?case=7943178321659144844&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Click to expand...

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_c...2&q=U.S.+v.+DeBerry&hl=en&as_sdt=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.
 
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Rich B

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davidmcbeth said:
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_c...2&q=U.S.+v.+DeBerry&hl=en&as_sdt=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.
Click to expand...


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.
 
davidmcbeth

davidmcbeth

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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 :)
 
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Mike

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davidmcbeth said:
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?
Click to expand...

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.
 
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davidmcbeth

davidmcbeth

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Mike said:
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.
Click to expand...

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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