Category: Criminal Procedure

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.

Having a conviction on your record can impact aspects of life as a citizen in ways perhaps not initially realized. One of those is the privilege connected to operating a driver’s license in Washington, D.C. Like various states in the union, D.C. works on a point-based system when it comes to determining the effects certain convictions have on someone’s ability to exercise their privilege to drive. Depending on the situation, the impact on one’s license will vary.

How the Point System Works

The structure of the D.C. point system is actually quite straight forward – certain charges are going to incur a certain number of points. Those who accumulate too many points are then at risk of having their driving privileges removed. Your right to drive is at risk of being suspended once you have acquired around 8-9 points, while if you reach 10 points, a suspension of the license is mandatory. These points stay on a driving record for two years. 

Then, points are required to be deleted via the DMV guidelines. In these same DMV guidelines, it also states that the department is required to provide safe driving points. These points are collected by going a calendar year without drawing a single negative point. One year without a negative point is equal to one safe driving point, with a maximum of 5 safe driving points on a record at any given time. 

Unlike punitive points which are removed after two years, safe driving points are taken off one’s record after five years. While ten punitive points accrued requires a license suspension, over 12 points could end in the revoking of a license.

The point-system includes everything from “following another vehicle too closely” (2 points), all the way to “leaving the scene of a collision in which personal injury occurs” (more commonly referred to as a hit and run), which is equal to 12 points. 

If at a hearing you are found liable for some moving violation, the point system determines the number of points assigned to your record. Important note: in D.C., paying a ticket is considered an admission of liability, and therefore will also result in the application of these points to one’s driving record once the ticket is paid but not when the ticket is assessed.

Removal of points can be a relatively painless process depending on the reasoning for the sustained infraction. For example, a simple moving violation and the subsequent points can be removed with the simple completion of an online defensive driving course – the points will be removed entirely from the record. Do note that if you are going to go this route, prior approval from the D.C. DMV’s Hearing Examiner is required.

How Certain cases Impact a License and Reinstatement Process

Perhaps unsurprisingly, DUI, DWI, and OWI’s are more serious cases that have substantial impacts on one’s driving privileges. In D.C., being found liable for any one of these crimes results in the automatic suspension of one’s license. Equally important to note is that entering into a DSA, Deferred Sentencing Agreement could potentially result in limitation, suspension, or even revocation of one’s license. 

A DPA, or Deferred Prosecution Agreement, however, cannot be used to limit, suspend, or revoke one’s license. In D.C., unlike in some states, if you are found liable for any one of the three drinking and driving violations, you are not allowed to request a limited occupational license, which further restricts one’s ability to use a vehicle.

These three instances are not the only types of cases which impact one’s driving privileges.

License Revocation for DUI

In fact, many cases can impact a license in one way or another as a form of collateral. Failing to make child support payments, for example, can result in the suspension or even revocation of a license.

It should be noted that the number of convictions for these types of cases can impact the length of suspension or the possible revocation of a driver’s license. In D.C., the first offense generally results in the suspension of a license for 6 months in addition to the 12 points on the offender’s license. This is in conjunction with a retest to obtain the license once more. 

It only gets worse from there, with 2nd-time offenders having their license revoked for one year, while a third-time offense will result in a license being revoked for 3 years if it occurs within 15 years of the other cases.

If convicted, the reinstatement process is going to look slightly different. A suspension of your license, naturally, means you must wait until the conclusion of that time period. 

There will also be a $98 reinstatement fee when you go to the DMV following the conclusion of your suspension. You will also need to complete a Traffic Alcohol Program. 

In the case where your license was revoked as opposed to suspended, your process will be more involved. You will be required to attend a hearing and complete a certified substance abuse program. Various tests will then be conducted to make sure you are safe for the road again, including a driving knowledge test, attaining a driver’s permit, taking and passing a road test, until finally getting your license. You must also cover any and all fees that are associated with this process.

For further questions relating to how criminal convictions may impact your driving privileges, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. look at your case. 

All those who are hired for a federal position must undergo some form of basic background investigation to determine if an individual is “reliable, trustworthy, of good conduct and character, and loyal to the United States.” This goes for military personnel, government employees, or even governmental contractors.

Naturally, many people question what kind of information may become available to the government once investigators begin looking into personal, criminal, and financial history. Since many people living in the District of Columbia and Maryland work for the federal government and often need security clearances, it is important to know what impact certain crimes, like DUI, misdemeanors, and felonies, may have on the clearance process.

Levels of Security Clearance

Depending on the nature of the position, a different level of security clearance may be required. There are a few different layers to the various security clearances. It begins with three main classifications: non-sensitive positions, public trust positions, and national security positions. Non-sensitive and public trust positions require the lowest level of background check – usually conducted through an automated system.

Within national security checks, there are a further three levels of classification: confidential, secret, and top secret. Confidential is the lowest level and is usually required for positions in which one would have access to information that may cause some damage to national security. Secret classifications are for those positions with access to information, which could cause serious damage to national security, while top secret is a security clearance needed for those who will have access to information, which would cause exceptionally grave damage to national security. Security clearances must be reinvestigated – confidential clearances must be reviewed every 15 years while secret and top-secret clearances must be renewed every 10 and 5 years, respectively.

How does A DUI Impact a Security Clearance?

There is both good news and bad news. The good news is that being arrested, charged, or convicted of a DUI does not automatically mean you are ineligible for securing, or renewing, a security clearance. The bad news, however, is that it can have serious implications and, therefore, negatively impact the security clearance process.

The assigned security officer is tasked with taking a holistic approach to each applicant. This means elements such as time passed between incident(s), low incident frequency, outstanding circumstances related to the event, and any treatment programs to address substance abuse problems can help mitigate concerns that a DUI case may cast on one’s character or judgment.

As always, in the case in which an applicant’s security clearance is canceled or denied due to a DUI, there is an appeal process.

How do Misdemeanor and Felony Cases Impact a Security Clearance?

There are three categories of applicants who are immediately disqualified from receiving a security clearance:

  1. A person who is currently a user or addicted to a controlled substance.
  2. Any individual deemed mentally incompetent.
  3. An individual dishonorably discharged from the military.

Outside these three circumstances, having a criminal conviction does not directly eliminate one from receiving a clearance, although it certainly will hurt the applicant’s chances.

A major issue with misdemeanors is if there is a clear and identifiable pattern of offenses. This will inherently call into question the applicant’s ability to follow the rule of law, along with the individual’s judgment, reliability, or trustworthiness.

Problems with court-ordered rehabilitation or parole on a misdemeanor case may also reflect negatively. It is important to note that for the SF-86 form, which is the standard form filled out for security clearance applications, even a minor traffic incident in which law enforcement restricts the applicant’s personal freedom, is taken into custody or is released with a promise of appearing in court at a later date, are all considered misdemeanor arrests. Exceptions can be made for fines under $300, not involving drugs or alcohol.

If the applicant has a felony case against them, this could pose even larger barriers to a security clearance than a misdemeanor charge. The SF-86 asks questions related to any potential involvement of the applicant in a felony case, which features alcohol, drugs, firearms, or explosives. It follows up with a question on if this has occurred within the last 7 years, if the applicant was court-martialed (if military at time of incident) or is currently awaiting pending court action. When it comes to felony cases, security officers will view crimes involving either dishonesty (fraud, theft, embezzlement, etc.) and those which may expose the applicant to potential blackmail, in the harshest light.

For further questions relating to your security clearance application or how your criminal record may impact this process, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. look at your case.

Recently, the law firm I work for, Bruckheim & Patel,  celebrated a victory in court when our client who was charged with armed robbery in the District of Columbia received a hung jury verdict after deliberation. As an office, we lauded the hard work put in to ensure our client had the best possible defense. However, the celebration was short lived when we realized that our client who just received a hung jury verdict was not yet a free man. Since our client was not declared guilty or not guilty, he was still able to be tried again. I wondered how is this constitutional and what are the rules when it comes to retrying an individual for the same crime who has received a hung jury verdict?

The Curtis Flower Case

An exemplar case that encompasses this idea of retrying individuals who received a hung jury verdict is the case of Curtis Flower. Many people are becoming increasingly familiar with the Curtis Flower case as it is gaining more attention from the media.

If you are not familiar, Curtis Flower is an African American man who has been tried for the same crime six (6) times. The first three trials ended with a conviction that was overturned, and trial four and five ended with a hung jury. Yet, Mr. Flower continues to be prosecuted for a crime he was accused of committing in 1996. How is this possible? The answer comes down to none other than the courthouse’s knights in tin foil, better known as the government prosecutors.

Role of the Prosecutor

I learned early as a college student studying Justice and Law that because the way our criminal justice system is set up, the prosecutor and his office has all the power. Prosecutorial discretion is used often to dictate the sentence and the tone of the case. In addition, prosecutors have the immense power of choosing which cases go to trial and for what charges. Prosecutors can use this power to continue to try cases when there is a hung jury verdict as we have seen with Mr. Flower’s case.

Double Jeopardy?

Under the Fifth Amendment of the United States Constitution we have the right to not be tried for the same crime. The Fifth Amendment states, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. This clause is also known as the Double Jeopardy clause, and ensures that citizens are not unfairly prosecuted under the law. Prosecutors, including the ones in Mr. Flower’s case, argue that this does not violate the Double Jeopardy clause because it is not six trials for the same crime, but rather one trial, six times.

While legally speaking, retrying an individual after a hung jury verdict is not unconstitutional, it does however seem extremely unfair to the individual being prosecuted. During the second and even third trial, the government is able to rework and fix their case to ensure a better verdict. They know what worked and what did not work and change their case accordingly.

Why, even when the prosecution deemed the jury competent, can the government retry individuals? How many hung verdicts does it take for the criminal justice system to say enough is enough, this is unconstitutional and prosecutorial overreach? The question remains unanswered.

For many unfamiliar with the Justice System, the various arrest procedures in the District of Columbia can be intimidating and confusing. Often times, police are not forthright with information and might provide inaccurate information to the arrestee. This only adds to the confusion and intimidation of this process. However, with the aid of top DC criminal lawyers, this process can be better understood and result in the favor of the arrestee.

Depending on the charge, there are two main procedures that DC police use to process an arrest. For most misdemeanors, there is an eligibility for release. This results in the arrestee being released from the station with a citation and a return date to appear before a judge in court. This includes DUI, DWI, simple assault, unlawful entry,and hit and run charges amongst others. This process only takes a few hours, in which an arrestee will be finger printed, processed and eventually released from the station.

However, there are a number of barriers that limit the eligibility for release. Certain misdemeanors, such as an unregistered firearm, are not eligible for release. Furthermore, felonies, a prior extensive criminal record, judiciary warrants, and domestic violence charges will also prohibit the arrestee from being eligible to be released from custody. If a judge issues a bench warrant for arrest, regardless of the charges, this person must be detained until they are brought before the judge. Even in cases of misdemeanors, if a judicial arrest warrant is issued they are not eligible for release. In domestic violence cases, regardless if the charges includesimple assault, unlawful entry or other misdemeanors, domestic violence negates the eligibility of immediate release. Lastly, if the arrestee is currently on probation or parole, this will also result in an arrestee not being released from police custody.

In the case in which one or more of the above criteria are met, there is a separate police procedure that is followed. During this procedure, the arrestee is first booked at the police station. The officer collects information of the arrestee. They are then transferred to the central cellblock, or the main jail in which arrestees not eligible for release are kept until after their bond hearing. They will wait in central cell block until their appearance before a judge. At central cellblock, family and friends are not allowed to see those held. This only adds to the confusion and fear that being arrested has on those arrested and those closest to them. While family and friends cannot meet with those held in central cellblock, the arrestee’s criminal defense lawyer can.

When it’s time to appear before the judge, the arrestee moved to lock up. Here, they will appear before the judge in courtroom C-10 typically who will make a release determination. The length of this process can vary depending on when they were arrested, however if the arrest took place during the work week it is normal to spend approximately one night in jail. If the arrest took place on the weekend on a Saturday,the arrestee will have to wait until the following Monday in order to appear before a judge resulting in approximately two nights in jail.

Arrest procedures are characterized by a lack of information, which leads to confusion and fear. With the aid of top DC criminal defense lawyers, the process become clearer and the path towards release becomes much easier to navigate.

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