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On March 13, 2020, 26-year-old Breonna Taylor, an African American EMT, was shot and killed by police carrying out a no-knock warrant on her Louisville, Kentucky apartment. The killing sparked months of nationwide outrage, Black Lives Matter protests, and calls for police reform, which resulted in the passing of Breonna’s Law, effectively banning no-knock warrants in Louisville and increasing the requirements for body camera footage for all warrants. 

However, at the heart of these protests were calls for the three officers involved in the shooting, Johnathan Mattingly, Brett Hankinson, and Myles Cosgrove, to be arrested and charged with murder. Accordingly, Kentucky Attorney General Daniel Cameron summoned a grand jury of 12 Louisville residents, to whom he would present evidence in this matter. The grand jury, then, would decide whether or not probable cause existed to charge the officers.

Finding Released

On September 23, 2020, the grand jury’s findings were released. Brett Hankinson, who had been fired from the force in June, was charged with three counts of wanton endangerment because of bullets that went into the neighboring apartments. Neither Officer Mattingly nor Officer Cosgrove were charged at all. 

Coming more than six months following Taylor’s killing, the decision recharged outrage across the country. In a press conference, AG Daniel Cameron explained that the officers were justified in using deadly force because they were fired upon first by Taylor’s boyfriend. The latter used a legally owned firearm to defend himself against what he believed to be intruders in his home after police forcefully entered in the night without announcing themselves. 

Jurors Seek Legal Counsel

Now, the situation has become mired in even more controversy. An unnamed juror has argued, via a legal motion, that AG Cameron did not, as he claims, present the totality of evidence to the grand jury. This juror alleges that the AG used the grand jury to “deflect accountability and responsibility” and that he planted “more seeds of doubt in the process.” 

Another unnamed juror has begun seeking legal counsel to come out and speak against the grand jury proceedings as well. Grand jury proceedings are generally kept secret to protect the reputation of those accused but not indicted of a crime, as well as to shield jurors from criticism or harm. Only in extreme cases do grand jury proceedings get released, like when a grand jury did not indict Darren Wilson for killing Michael Brown in 2014. On Friday, October 2, 2020, AG Cameron released about 15 hours of tapes of the grand jury proceedings.

This myriad of controversy and confusion has called into question the practice of keeping grand juries secret. Regardless of this debate, however, it is crucial that everyone understands their roles and rights on a grand jury, should they be called to serve on one. 

Grand Jury Trials in DC

In the District of Columbia, to be eligible to serve on a grand jury, you must be a United States citizen, a resident of the District of Columbia, 18 years or older, and able to read, speak, and understand the English language. Disqualifying factors include physical or mental incapability, having a felony conviction or be pending a felony or misdemeanor conviction, or selecting certain answers on jury qualification forms, as each case dictates. 

DC also codifies that jurors on a grand jury will receive fees and expenses for their time served, which shall be set by the Board of Judges of the Superior Court and will not exceed those awarded in Federal court. Similarly, DC Code stipulates that individuals receiving benefits, such as unemployment, will not have those benefits affected by jury duty. Additionally, an employer may not punish, terminate, or threaten to terminate an employee who must take time from work to serve on a jury.

            

           

 

The United States Constitution delineates certain inalienable rights given to all citizens. Many of these rights specifically protect against government intrusion. In other words, they detail what the government cannot do to its citizens. One such amendment is the Fourth Amendment, which protects against unreasonable searches and seizures by government actors, requiring there to be probable cause prior to a search and seizure. Similarly, the Fifth Amendment details the requirement of due process of law before an individual is “deprived of life, liberty, or property.” These amendments are two crucial safeguards against government intrusion and deprivation of freedom on an unconstitutional basis.

Degradation of Constitutional Protection

Unfortunately, a practice known as stop and frisk has seriously degraded the constitutional protection against unreasonable searches and seizures. The 1968 Supreme Court case, Terry v. Ohio, provides the legal basis for such a diminution. Terry, along with two other men, were stopped by a plain-clothes police officer after the officer believed he saw the men casing a store he thought they hoped to rob. After stopping them, the officer patted down, or frisked, the outside of the men’s clothes, which led to the discovery of weapons on two of them. The question posed to the court, then, was whether or not the search of the men and seizure of the weapons was unconstitutional because the officer did not have probable cause prior to frisking the outside of the clothes. In other words, the officer gained probable cause to seize the weapon only after he felt the weapon, which occurred following a search without probable cause.

In an 8-1 decision, the court found that the search conducted by the officer was constitutional under the Fourth Amendment, allowing the seized weapon to be introduced as evidence against Terry. The court felt that the officer had “reasonable suspicion” to believe the men were armed, and, in the interest of his safety, was permitted to frisk the outside of the men’s clothing. The effect of this decision, then, was the creation of a lower standard of suspicion to warrant a stop and frisk. The phrase “reasonable suspicion” does not appear anywhere in the Constitution, and yet, the Supreme Court has effectively lowered the bar of probable cause for a search, to an arbitrarily defined “reasonable suspicion” being required to search someone.

Legal Precedence for an Unconstitutional Ruling

Since this decision, police have taken advantage of the lower standard of proof to routinely and systematically harass communities of color. Police departments frequently impose barriers to data collection in order to conceal the predatory nature of this practice. The data that is available, however, is deeply concerning. Take New York City, for example. In 1999, Blacks and Latinos accounted for 50% of New York’s population, yet made up 84% of all stop and frisks. As the 21st century began, this trend hardly changed. While making up a similar proportion of the city’s population, Black and Latino people made up more than 80% of the 4.4 million stops between 2004 and 2012. In those same years, nearly 90% of those stopped were innocent. When these numbers are considered, it is impossible to view stop and frisk as anything other than a racially motivated terrorizing of minority communities.

In fact, in 2013, a federal judge agreed and ruled New York City’s stop and frisk policy unconstitutional. Judge Shira Scheindlin ruled that the NYPD’s use of this tactic violates the Fourth Amendment’s protection from unreasonable searches and seizures. Judge Scheindlin pointed to the overt racial discrimination taking place under the guise of stopping and frisking. This case clearly shows that the use of stop and frisk can, and should, be challenged in court as a way to prevent racial profiling and disproportionately aggressive monitoring of minorities.

The Time To Act Is Now

Now, our firm believes, is the time to critically examine stop and frisk within the District of Columbia. Through an extrapolation of data released by MPD, the publication of which was systematically slowed and concealed, it has been discovered that there are 19,000 stop and frisks per year in DC. Importantly, 93% of those stop and frisks were carried out on African Americans, who make up nearly half of the District’s population. Additionally, between 2013 and 2017, African Americans were arrested at ten times the rate of white people.

One unit in the MPD in particular is responsible for a vast majority of these stop and frisks: The Gun Recovery Unit (GRU). The GRU employs about 20 to 30 officers at any time, and its deployment is disproportionately carried out in predominately black wards. The Unit does not, as the city has claimed, patrol the whole city, but is instead hyper-focused on communities of color. Every aspect of the GRU is, by design, intended to intimidate civilians into consenting to a search for which the officers do not have probable cause. The uniform of the GRU, consisting of tactical gear, is meant to instill more fear than the standard uniform for an MPD officer. Even the flag of the GRU conveys the intentional intimidation of the District’s citizens. The flag centers a skull and cross bones, with a bullet hole in the forehead, as well as the slogan “vest up one in the chamber,” which clearly indicates an aggressive, ready-for-action attitude.

The tactics of the GRU reflect the aggressiveness of their appearance and banner. Utilizing “jump outs,” the GRU will drive around in unmarked cars with multiple officers, and then literally jump out of the car and surround groups of, typically, young African American males, who they then try to intimidate into consenting to a search. The GRU does not even concern itself with obtaining reasonable suspicion, let alone probable cause, prior to a search, and its officers frequently fabricate facts surrounding searches.

Our litigation firm Bruckheim & Patel, in conjunction with The Partnership for Civil Justice Fund, is in the midst of a class action lawsuit against MPD for its illegal use of stop and frisk, particularly from the GRU. MPD has engaged in rampant racial profiling and heinous violations of the constitutional rights of DC’s residents, and we hope to once and for all end the predatory nature of the GRU and stop and frisk.

“Women belong in all places where decisions are being made.

It shouldn’t be that women are the exception.” -RBG

 

On September 18th, 2020, the country mourned the loss of cultural and political icon, Supreme Court Justice Ruth Bader Ginsburg. Justice Ginsburg was only the second woman to serve on America’s highest court. One of the nation’s strongest advocates for a variety of issues, from women’s rights to same-sex marriages to abortion rights, Justice Ginsburg was a titan for equality. Since her appointment to the court by former President Bill Clinton in 1993, Justice Ginsburg has written powerful decisions for landmark cases, while often writing equally poignant dissents.

Ginsburg played a significant role in the fight for gender equality long before her appointment to the Supreme Court. In 1972, she began working at the ACLU and helped create the Woman’s Rights Project. Ginsburg played an integral part in arguing cases such as General Electric Co. v. Gilbert (1976), which led to the Pregnancy Discrimination Act, and Frontiero v. Richardson (1973), which created a heightened level of scrutiny to be applied to gender discrimination cases.

Three years following her appointment to the Supreme Court, Justice Ginsburg wrote the decision in United States v. Virginia. This case struck down the Virginia Military Institute’s male-only admission policy through the Equal Protection Clause of the 14th Amendment and is perhaps Justice Ginsburg’s most famous decision for the advancement of gender equality.

One of her most scathing dissents came in Ledbetter v. Goodyear Tire & Rubber Co. (2007), in which a Goodyear employee sued the company, alleging that she was receiving a lower wage because of her gender. Offering a harsh rebuke of the court on an all-male 5-4 split, Justice Ginsburg showed powerful support for the end of the gender pay gap. Justice Ginsburg penned an equally compelling dissent in Burwell v. Hobby Lobby Stores, Inc. (2015). In another 5-4 split, the Supreme Court ruled that the government cannot require certain for-profit corporations to pay for contraceptives for their employees. Justice Ginsburg’s dissent outlines the consequences of woman being discriminated against because they have different religious views than their employer.

Ginsburg was, importantly, part of a 5-4 majority in Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide in a huge victory for the LGBTQ+ community. “We have changed our idea about marriage,” Ginsberg said during oral arguments. “Marriage today is not what it was under the common law tradition, under the civil law tradition.”

While her passing is devastating, it comes just two months before one of the most contested presidential elections in history. The vacancy on the Supreme Court will present a deeply polarizing issue, providing Republicans a chance to have six conservative Justices on the court. President Trump has already shown his eagerness to replace Justice Ginsburg with a more conservative Justice, which would tilt the ideological balance of the court for years to come. Trump has already had the opportunity to install two conservative judges to the court.

Much is at stake with the nomination of a new Supreme Court Justice, including reproductive rights, voting rights, criminal justice reform, immigration, and healthcare. In any event, the legal community and beyond are mourning the loss of an incredible jurist, a powerful leader in the fight for gender equality, and an inspiration to many.

 

 

As the ongoing pandemic rages across the world, people in every state in the United States are required, or have been required, to stay home as much as possible to slow the spread of the deadly Coronavirus. Being confined in the home has posed a litany of added stressors, including financial problems and mental health deterioration’s. 

The additional problems and sources of stress, as well as the nature of being home far more than people are used to, have contributed to a subsequent rise in domestic violence (DV). Police have seen varying degrees of increases in DV calls across the nation, some as high as 20%. This trend is no different in the DMV. DC law enforcement has spoken about the fear of a rise in DV during the lockdown since March, and national trends seem to affirm that concern. 

DC Domestic Violence Laws

The District of Columbia Criminal Code details what would constitute an arrest for DV as follows:Domestic violence - DC

“A law enforcement officer shall arrest a person if the law enforcement officer has probable cause to believe that the person: committed an intrafamily offense that resulted in physical injury, including physical pain or illness, regardless of whether or not the intrafamily offense was committed in the presence of the law enforcement officer”. 

The term “intrafamily” refers to a domestic partner, which can be defined as “a spouse, lover, sibling, parent, child, or roommate”. The aforementioned definition of DV in DC would constitute simple assault, which is defined as “a misdemeanor offense involving either the threat of force or the actual use of force”. 

           

Standard of Proof for DV Simple Assault

 As with any criminal case, the government must prove the defendant’s guilt beyond a reasonable doubt. In the case of a DV simple assault case, the government must prove the following three elements:

  1. Either that the defendant intended to use force or violence against the other person or that he/she intended to put that person in fear of immediate injury.
  2. That the defendant’s actions were intentional and not the result of a mistake or accident.
  3. That at the time of the alleged incident, the defendant had the “apparent ability” to injure the other person.

Potential Punishments if Convicted

The maximum penalties for sentences for DV cases are the same as other simple assault cases, 180 days in jail and/or $1000 fine. However, judges typically sentence DV cases harsher due to their proclivity to reoccur. As with other cases, the Court will view a variety of factors when determining sentencing. Notably, however, many diversion options typically available to first-time offenders are not available in DV cases. 

There may be an option of a Deferred Sentencing Agreement (DSA) which would entail the defendant entering a guilty plea, and then being given a particular amount of time to complete a set of requirements, which may include anger management training, mental health evaluations, or completion of a Domestic Violence Intervention Program. 

Contact our Attorneys Today

 If you have questions about DC’s domestic violence laws or require legal representation, reach out to Bruckheim & Patel to speak with attorney Sweta Patel or Kelsey Penna at 202-930-3464.  

Are accountability and transparency the solution? Or is policing as we know it an outdated approach to public safety?

On Wednesday, September 2nd, 2020, Metropolitan Police Department (MPD) officers arrived at the 200 Block of Orange St SE in response to an Instagram live stream of multiple individuals in a vehicle brandishing firearms.

One of the individuals in the vehicle was 18-year-old Deon Kay, a Black male who ran away from the car when the officers arrived on scene. When Officer Alexander Alvarez saw that Mr. Kay had a gun in his hand, Alvarez immediately shot Mr. Kay in the chest as Kay threw his firearm away from himself into a grass field. Deon Kay was soon transported to the hospital, where he later died as a result of the shooting.

In June earlier this year, the D.C. Council passed an emergency police-reform bill that requires the MPD to release the body-worn camera footage of officers involved in fatal shootings within five days of the event. The bill also requires MPD to make public the names of the officers specifically involved. Within this bill, the victims’ families can choose whether or not the videos should be made public.

Due to this new policy, two videos of the incident have been released. The first version, which lasts a little more than four minutes, begins with a narration, giving details as to where and why the police were responding to the scene. Then, Officer Alvarez’s body-worn camera footage shows the shooting and follows Alvarez as he looks for the firearm thrown by Kay immediately after. The video concludes with a slow-motion playback of the shooting, which more clearly shows Mr. Kay brandishing a firearm before he is shot. The second video released by MPD is unedited and about 11 minutes long. It is the full body-worn camera footage of Officer Alexander Alvarez.

While the emergency police-reform bill promotes accountability and transparency among law enforcement agencies, it by no means solves policing issues in America. The video shows Deon Kay brandishing a firearm before Officer Alvarez fatally shots him. Still, critics ask why Kay had to die instead of attempting to de-escalate the situation.

Amid the strong and ever-growing Black Lives Matter (BLM) movement, the death of Deon Kay drew public outrage. A BLM organizer, April Goggans responded to the event saying, “This is the systematic way that MPD operates and polices black bodies. They see him; they jump out, they barely stop the car and run after him.”

The American Civil Liberties Union went public to criticize the officer’s quickness to shooting Kay instead of making any attempt to de-escalate the situation before fatally shooting him. The executive director of the ACLU’s District of Columbia branch, Monica Hopkins, said,

“The D.C. police department’s approach to gun recovery has been dangerous and ineffective for years. The tragic shooting and death of 18-year-old Deon Kay is the logical conclusion of a policy that not only meets violence with violence but actually escalates and incites it — especially in our Black communities.”

At-large Councilmember David Grosso went to Twitter to say, “The police killing of #DeonKay is a tragedy, and my heart is with his family and loved ones. The community and public deserve answers and accountability on MPD’s actions in this incident. His death is a failure of our outdated approach to community safety.”

It is time for the MPD to consider a new approach to keeping communities safe instead of making the people of the communities they police feel unsafe. While the emergency police-reform bill is an attempt, it is a mere band-aid that cannot truly heal a broken and outdated system.

During divorce, there are many things up in the air; property, child custody, new living arrangements, but one thing has become a contentious issue in divorce proceedings is pets. When looking at the role of pets during a divorce, DC and Maryland law both treat pets as property. Due to this characteristic, many courts and lawyers believe that it is best to settle the pet custody on your own or through your personal attorneys. It is normal for many to come to an agreement about their pet outside of court, since very rarely does a case pertaining to pet custody actually go up in front of a judge.

Pet custodySome factors to be considered are: will there be shared custody or some sort of visitation schedule, who will be paying bills pertaining to the pet, and who gets to make important health decisions for the pet. When answering these questions lawyers believe that it is the most important to consider what is in the best interest of your pet, rather than solely focusing on your spouse. It has been proven that the stress of separation can also be felt by your pet, so it is best to maintain a similar daily routine to what your cat or dog has currently. It is also vital to consider who can take best care of your pet by looking at things like who has a better schedule to take care of the dog and take them on walks. Looking at who your pet is better bonded with is worth considering. Oftentimes, one spouse had full ownership of the pet before marriage, the animal is kept with them after divorce.

Lawyers often encourage clients to keep their pets with their children. During a  divorce in D.C., the pet can be of comfort for your children during these trying times. Some also believe that it is best for the pet to stay with whoever gets the home.

Avoiding Future Difficulties

There are many ways to avoid pet custody issues in the future. Lawyers recommend starting a paper trail, by putting everything in relation to your pet in your name from the bills to the pet’s registration papers. You can avoid any questions of who will get the pet in the future since according to the law you are the owner of the animal. It is also recommended to include a pet in a prenuptial agreement if possible to avoid any arguments in the future.

Divorce proceedings are often very emotionally charged as many consider pets to be part of the family, which makes proceedings even more difficult. It is understandable as we view our pets as our children. The best way to settle a dispute over pet custody is by having a candid conversation with your divorce attorney.

Contact Our Attorneys Today

If you have questions about your options during this time, reach out to Bruckheim & Patel to speak with attorney Sweta Patel or Kelsey Penna regarding a consultation about your DC or Maryland divorce or custody issues at 202-930-3464.

In the District of Columbia, when a person petitions the court for a Civil Protection Order it is the petitioner’s burden to prove that an intrafamily offense occurred. An intrafamily offense means the offender needs to have committed or threatened to commit a crime against a person he shares a relationship with by marriage, blood, a child in common, legal custody, shared residence, or a romantic/dating relationship. Because Civil Protection Orders are unique in that they mix both criminal law and civil litigation, there are specific rules that regulate these matters under the Domestic Violence Division at D.C. Superior Court.

Civil Cases with Criminal Implications

Discovery Rights

Unlike a criminal case, automatic discovery rules do not apply when a Civil Protection Order is initiated. Rule 8 of the Domestic Violence Division Rules governs discovery practice. If either party wishes to receive discovery prior to the hearing, the party must motion the court and state whether there is a pending criminal case involving the same facts alleged in the Civil Protection Order case and attach proposed interrogatories, requests for production, or requests for admission. This motion must be filed not later than 7 days after the respondent was served with the petition. Even if a party requests discovery, there is no guarantee the court will grant the request if good cause has not been shown and with regard to the nature of the proceedings.

5th Amendment Protections

In some cases, a criminal case rising out of the same facts may be pending simultaneously with a Civil Protection Order case. If the respondent is a defendant in the criminal case, he may believe he can invoke his 5th Amendment right to protect himself against self-incrimination by not testifying and delaying the civil protection hearing until after the criminal case is complete. However, Rule 12(b)(4) of the Domestic Violence Rules prohibits the respondent’s testimony during a civil protection hearing be used against him and is inadmissible as evidence in a delinquency proceeding or criminal trial. The only exception to the rule is his testimony can be used in a prosecution for perjury or false statement. Since this rule exists, it is unlikely a judge will delay the Civil Protection Order hearing until after a criminal case based on a 5th amendment claim.

Reasonable Doubt v. Preponderance of Evidence Standard

Though the judge in a Civil Protection Order hearing needs to find that the respondent committed or threatened to commit a criminal offense against a petitioner, the level of proof required is much lower than what is necessary in a criminal case. As most people know, the government must prove beyond a reasonable doubt that a defendant committed a crime in order for the person to be found guilty. In a Civil Protection Order case, the judge only needs to find that there is good cause to believe the respondent committed the offense. This standard is known as the preponderance of evidence which can be defined as it was “more likely than not” or “more than a 50% chance” that the offense occurred.

Motions to Reconsider and Appeal Rights

If a party disagrees with the court’s findings after a Civil Protection Order hearing, he can motion the court to reconsider its ruling. Rule 7(j) details the following grounds for this motion:

  • The court’s failure to consider a material fact or applicable law;
  • Newly discovered evidence that, with reasonable diligence, could not have been discovered prior to the court’s ruling, order, or judgment;
  • A change of law not previously brought to the court’s attention;
  • The absence of a stated reason for the court’s order;
  • Fraud, misrepresentation, or other misconduct by the opposing party;
  • Mistake, inadvertence, surprise, or excusable neglect; or
  • Any other reason that justifies relief.

A motion to reconsider must be filed no later than 28 days after entry of the order. If a party’s motion to reconsider is denied, he then could file a notice of appeal with the Court of Appeals for the District of Columbia. This notice must be filed within 30 days from the denial of the motion to reconsider. However, a party is not required to file a motion to reconsider with the court prior to filing a notice of appeal. After the Civil Protection Order is issued, a party can appeal this order by filing a notice of appeal within 30 days with the Court of Appeals. It is important to note that filing a motion to reconsider or a notice of appeal does not change or suspend the Civil Protection Order while the motion and appeal are pending.

If you are interested in petitioning for a Civil Protection Order or someone has filed a Civil Protective Order against you, contact Bruckheim & Patel to speak with one of their expert attorneys in domestic violence for a free, confidential consultation.

When most people get pulled over for suspicion of a DUI, they automatically think about whether they had any alcohol or how long it had been since their last drink.  Rarely do people think about their diet and how that could affect a breathalyzer test.

People may need to add this to a list of their concerns.  With society’s ever-increasing pressure to look fit and thin, a lot of people are turning to fad diets to accomplish these goals. However, some diets, like the Keto diet, may negatively impact a breathalyzer test and make it appear like a person is more intoxicated than they are.  

Low carb diets, such as the newly popular Keto diet, involve eating little to no carbohydrates but eating more fatty foods. This way, when your body tries to burn carbs for energy, and there are none to be burned, your body burns fat for energy instead. This may sound like a good idea because it is effective and works fast, but this can cause surprising side effects for breathalyzer tests.

Can Ketosis cause false positive breathalyzer?

Yes, when in ketosis the body creates acetone as a byproduct, which is released through your breath in the form of isopropyl alcohol. A breathalyzer test will be will read the isopropyl as ethanol, which is used to make most alcoholic beverages

Your body likely won’t have enough isopropyl in it to cause a reading of above .08 on a breathalyzer test. However, a problem could arise if you had been drinking prior, even if it’s not enough to put you over the legal limit because the isopropyl would cause a higher reading than your actual blood alcohol content would indicate.

If the officer has sufficient indicators to offer you a field breath test, or if you’re taking the breath test at the police station, you will likely be charged with driving under the influence if your results come back positive. However, a blood alcohol content test would not be subject to the same inaccuracies as a breath test and could prove a positive breath sample as false. 

Even though law enforcement officers may be aware of this possible false positive, rarely do they ask questions to determine if the person is on a Keto diet before administering a breath test. 

It is important if you feel you are not under the influence of alcohol, but on a Keto diet, to request a blood alcohol test rather than a breathalyzer. The officer may not oblige, but at least your request would be noted if the officer is wearing a body camera, like all officers are required to wear in the District of Columbia, and could help you at trial. 

Even though the Keto diet may make you look your best when it comes to possible DUI charges, it may be best to stick with eating the cheeseburger and fries. 

If you have been charged with a DUI and believe the breathalyzer reading produced a false-positive result due to your diet, speak to our DC defense attorneys about your case and see what your options are. Contact Bruckheim and Patel for a free consultation of your case.

Having an understanding of ways citizens can fight back when their rights have been violated by law enforcement officers is crucial. Being aware of police misconduct laws helps citizens know when and how they can make a legal claim of unnecessary use of excessive force against police officers. These claims would be considered civil claims, as opposed to criminal claims, in an effort to pursue justice against an officer if they have mistreated an individual or mishandled a situation using excessive force more than is legally justified.

What determines excessive force in an arrest?

The circumstances of an arrest determine whether or not an individual is able to file for excessive use of force against an officer. When reflecting on the circumstances of the arrest, there are two main things to consider: Did the officer have probable cause to make an arrest for a criminal offense? If they did have probable cause, how did the officer use force to make the arrest?

While officers do have the right to use a reasonable amount of force while making an arrest, anything that might exceed what is considered reasonable could possibly prompt a claim against an officer. Not only does this include any sort of physical harm, but also potentially any mental or emotional harm. These situations might pose an individual the opportunity to file a claim against the District of Columbia.

How to file a federal claim of excessive force

When filing for a claim, there are two main routes to potentially pursue. The first of which is making a federal claim against an officer for the use of excessive force. The Fourth Amendment protects citizens from unlawful searches and seizures. If the officer violated any constitutional rights. This could be either because the officer lacked probable cause to make the arrest, or that they used more force than they had to in order to make the arrest. On the other hand, the individual may also be able to make some common law claims against the officer including assault and battery, false arrest, false imprisonment, etc. These claims against the officer would be made through the District of Columbia, on behalf of the actions of the officer.

This process has time limits if you intend to file a complaint with the city. First and foremost, you must notify the city within 180 days of the incident if you intend to sue, based on the events that took place during an arrest. In doing so, you can send a letter to the mayor’s office here. This letter should describe the circumstances surrounding your case, the date that it occurred, and any injuries that you suffered. This letter will put the city on notice that you intend to file a lawsuit in the future.

Furthermore, if you intend to make any common law claims, your statute of limitations is one year for claims such as assault and battery, false arrest, or false imprisonment. In other words, an individual has one year to file a complaint in court proceeding from the date the incident occurred.

If you choose to make a federal claim, the constitutional violations against the officer has a statute of limitations of three years, which gives you more time to do so. However, it is a safer bet to make all possible claims when drafting a complaint and when a complaint is filed. Ideally, the complaint should be filed within a year of its occurrence.

The doctrine of “qualified immunity,” was originally created to protect law enforcement officers from tedious lawsuits that might occur as a result of “split-second decisions” they make on the job. This protection has led to a culture of injustice when citizens try to fight back against the system. The issue with the doctrine is that it relies on the idea that there must be a “clearly established” precedent to act as a model for officers to follow. If there is no established precedent of a situation, officers often are able to get away with illegal and harmful conduct. This has led to unnecessary violence, murders of many innocent civilians, and far too many instances of police brutality. There is currently an effort among the Supreme Court to move towards abolishing qualified immunity and how it plays a role in the criminal justice system today.

You can fight back if you have been mistreated by law enforcement, even if they are still currently protected by qualified immunity. It is important to note that if you are charged with criminal misconduct, it is recommended that you seek legal advice from a defense attorney prior to filing a complaint with the city or against the officer. This will ensure that your rights remain protected while charges are pending.

For more information regarding excessive force claims or misconduct against a police officer, contact Bruckheim & Patel for a free confidential evaluation.

Prisons across the country have begun releasing non-violent offenders due to concerns surrounding the risk factors of COVID-19. In an effort to protect overall public safety, the Federal Bureau of Prisons (BOP) has examined the possible dangers incarcerated individuals might face. Measures such as social distancing, are nearly impossible to enforce in prison systems. This issue paired with the virus’ ability to spread quickly among people poses a life-threatening situation to many.

Reviews Started as Early as March

As early as March this year, the BOP began to review the cases of non-violent offenders, to consider home confinement as an alternative to incarceration. Across the country, thousands of incarcerated persons who have been deemed to be at high risk for COVID-19 have been placed in home confinement and released from prison. As of April 15, the population of jails in Washington, D.C. has decreased 21.8%. Likewise, Maryland government officials have continuously been urging the state to identify incarcerated persons at risk and consider their release from prison.

Health Concern’s Trump High Profile Rulings

One high profile case that has been highlighted in the news media is that of President Trump’s former personal attorney, Michael Cohen, who has recently been released from federal prison. Cohen has been imprisoned in NY for the past year and the concerns for his safety due to COVID has led to this decision. As a result, the completion of his sentence, set to end in November 2021, will take place from the comfort of his own home.

Paul Manafort, President Trump’s former campaign Chairman, has also been released to home confinement. Manafort’s  criminal defense attorneys requested his release due to health concerns surrounding COVID-19. Manafort was convicted of charges involving bank and tax fraud and was sentenced to 7.5 years in March 2019. Previously serving his term in PA, Manafort, 71, has various health concerns that compromise his safety such as high blood pressure and respiratory conditions that make him vulnerable to COVID-19. At the time of his release, there were no reported cases of COVID-19 at the prison Manafort occupied, but his attorneys argued that to wait for a reported case would put Manafort in a potentially life-threatening position.

In February this year, Roger Stone had been sentenced to 40 months in prison and 2 years of supervised release. Stone had been found guilty of obstructing investigations related to Russia’s involvement in the 2016 presidential election. Stone’s attorney was informed that the date his sentence was set to begin, originally at the end of April, was pushed back 30 days by the BOP. As of April, Stone’s attorneys argued for a new trial due to juror bias which was ultimately dismissed. Stone has publicly spoken out about his frustration with being incarcerated during the pandemic, which could ultimately be life-threatening as Stone is 67 with various health issues.

Unfortunately, the presence of COVID-19 has begun to spread throughout prisons nationally at high rates. There have been at least 29,251 reported cases of COVID-19 among incarcerated persons as of the week of May 20, 2020. Releasing individuals who do not pose a great threat to the public into home confinement is seemingly the right move in order to protect the most lives.

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