police4aqi

Police, The Fourth Amendment, Qualified Immunity

For law geeks only edition: Video and the Heck presumption

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Roughly speaking, Heck v. Humphrey, 512 U.S. 477 (1994) held that one could not sue the police under civil law based on alleged facts that would contradict facts that had been used to support a criminal conviction.  For example, if a driver pleads guilty to speeding, then that driver can’t sue the police on the theory that pulling the driver over was a 4A violation because the driver wasn’t really speeding.  The presumption is that the criminal court got the issue correct.  This is the “Heck presumption.”  It sounds good at first blush, and is a sensible way to look at many police / citizen disputes.

However, what people don’t seem to realize sometimes is that entering a plea bargain to plead guilty to a very low level offense can effectively lose any possibility of a civil suit.  Let’s do another hypothetical.  A rogue policewoman makes a retaliatory arrest on her ex-boyfriend’s new girlfriend out of jealousy.  She says that she saw the new girlfriend discard a package of contraband.  The girlfriend is held on these charges and loses her lucrative job for missing the important meeting while in jail (in other words, big civil damages).  The prosecutor offers the girlfriend the chance to plead the possession of contraband charge down to simple loitering, most likely because the prosecutor realizes that her case is weak.  Under advice of counsel, the girlfriend accepts the plea deal to avoid even a small chance that she will be convicted and have to go to prison.  On these facts, the Heck presumption doesn’t work so good.  The rogue policewoman goes unpunished, and the girlfriend is not compensated for large and unfair economic losses.

Now lets get to the nub of this post — let’s add video to the mix.  In the hypothetical of the previous paragraph, after the woman pleads to loitering, this plea deal is reported on the town’s website.  A homeowner emails the woman and says he saw the arrest and he may have some audio and video evidence that may have been recorded by his audio / video security system.  Sure enough, there is a crystal clear representation (from multiple angles) of the girlfriend waiting at the bus stop and her arrest.  It shows that the rogue policewoman throw down the contraband into some tall grass by the curb.  The sound captures the rogue policewoman saying that she is performing a false arrest because the girlfriend “stole” her ex-boyfriend.  What happens to the Heck presumption here?  Does a civil suit against the rogue policewoman somehow become possible again?  If the Heck presumption is as irrebuttable as it appears to be, then there still can be no civil suit.  Still, this conclusion seems wrong to me.

To wind this down, here is a recent case that raises (but does not decide) issues similar to those raised in the previous paragraph of this post:

IANUALE v. KEYPORT TOWNSHIP, Dist. Court, D. New Jersey 2016

The main reason that the court could effectively avoid a difficult decision on the irrebuttability of the Heck presumption is that the video (no audio) was allegedly unclear, and subject to multiple interpretations, as to whether the plaintiff yanked away and/or smashed his girlfriend’s cell phone.

 

Written by Burgers Allday

October 24, 2016 at 6:34 am

Posted in Uncategorized

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