For the Defense - Volume 2, Issue 4 - 2017 - 26
than bringing your client to justice; and (5) your
client suffered a deprivation of liberty consistent
with the concept of seizure as a consequence of
the criminal proceeding.10 Note, the last element,
that your client suffered a deprivation of liberty,
does not require that your client be jailed
pending trial. Being processed post-arrest at the
police station, being required to pay bail, having
to appear at court hearings, and being subject to
pretrial conditions can constitute a deprivation of
liberty.11 Also, contrary to any popular misconceptions caused by the name of this cause of action,
malicious prosecution claims are not brought
against the prosecutor. Individual prosecutors, as
long as they are acting within their prosecutorial
function, enjoy absolute immunity.12
not the state) can be liable under Section 1983
where their policy or custom is the cause of
unconstitutional acts by their employees.16 Your
client may have a claim against the city if he can
show the city had or allowed an unconstitutional
policy, practice, and custom that caused the
constitutional violation.17 Municipal liability may
also be established if one can show the city was
deliberately indifferent to the need to properly
train, supervise, and discipline officers to ensure
against constitutional violations.18 In jurisdictions
or situations where municipalities refuse to indemnify the individual officer for damages claims, a
Monell claim, which is often much more difficult
to prove, may be the only hope of a meaningful
damages recovery.
Fabrication of Evidence. In the past few years, the
Third Circuit has recognized a stand-alone cause
of action under the Fourteenth Amendment's Due
Process clause for the fabrication of evidence.13 A
plaintiff must show a reasonable likelihood that,
absent the fabricated evidence, the plaintiff would
not have been criminally charged (or convicted,
assuming that you've been able to successfully
overturn a conviction); that the fabricated
evidence was so significant that it could have
affected the outcome of the criminal case; and
that the proponents of the evidence were aware
that the evidence was incorrect or that it was
offered in bad faith.14
State Tort Claims. While this article has mostly
described federal claims under Section 1983, a
criminal defense practitioner should also be aware
of possible tort claims under state law. Such claims
could include assault and battery, false arrest/false
imprisonment, malicious prosecution, invasion of
privacy, and intentional infliction of emotional
distress. In order to avoid the defense of immunity
under Pennsylvania's Political Subdivision Tort
Claims Act, a plaintiff has to show that the officer
committed a "crime, actual fraud, actual malice or
willful misconduct."19 Of course, once a plaintiff
has shown willful misconduct, a municipality may
claim that they are under no obligation to indemnify the officer defendant.
I emphasize that this section is not meant as a
practice guide on how to litigate such civil rights
claims (after all, we haven't even touched on the
issue of statute of limitations and when the statute starts to run for which claims). Rather, this is
simply meant to give criminal defense practitioners
an idea of the type of potential claims that exist.
Qualified Immunity. Individual officers who are
being sued will almost always raise the defense of
qualified immunity. An officer is entitled to qualified immunity if he or she shows that the right
he or she violated was not "clearly established"
at the time of the incident or if his or her conduct
and actions had not been previously clearly proscribed.15 Thus, in our hypothetical, had your client
been arrested for recording an officer's actions
prior to the Third Circuit's decision in Fields, the
officer could have raised a successful qualified
immunity defense because the law in the Third
Circuit on whether such behavior was protected
under the First Amendment was not "clearly
established" until the Court decided Fields.
Monell Claim Against the Municipality. The
Supreme Court has held that municipalities (but
26
For The Defense | Vol. 2, Issue 4
Investigatory and Discovery
Tips for the Criminal Case
There are certain investigatory steps and discovery requests that are common to the criminal
defense of police misconduct cases that could also
be helpful in a future civil case.
Documenting Injuries. In our hypothetical, the
attorney and client should immediately take steps
to document any injuries. In addition to taking
Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017
Table of Contents
Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
Changes in the DUI Landscape: Acts 33 and 30
Police Misconduct Resulting in Arrest: Weighing the Options
Dying with Dignity: Compassionate Release in Pennsylvania
Amicus Matters
Attorney Discipline
Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 1
For the Defense - Volume 2, Issue 4 - 2017 - 2
For the Defense - Volume 2, Issue 4 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 4 - 2017 - 4
For the Defense - Volume 2, Issue 4 - 2017 - Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
For the Defense - Volume 2, Issue 4 - 2017 - 6
For the Defense - Volume 2, Issue 4 - 2017 - 7
For the Defense - Volume 2, Issue 4 - 2017 - 8
For the Defense - Volume 2, Issue 4 - 2017 - 9
For the Defense - Volume 2, Issue 4 - 2017 - 10
For the Defense - Volume 2, Issue 4 - 2017 - United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
For the Defense - Volume 2, Issue 4 - 2017 - 12
For the Defense - Volume 2, Issue 4 - 2017 - 13
For the Defense - Volume 2, Issue 4 - 2017 - 14
For the Defense - Volume 2, Issue 4 - 2017 - 15
For the Defense - Volume 2, Issue 4 - 2017 - 16
For the Defense - Volume 2, Issue 4 - 2017 - 17
For the Defense - Volume 2, Issue 4 - 2017 - Changes in the DUI Landscape: Acts 33 and 30
For the Defense - Volume 2, Issue 4 - 2017 - 19
For the Defense - Volume 2, Issue 4 - 2017 - 20
For the Defense - Volume 2, Issue 4 - 2017 - 21
For the Defense - Volume 2, Issue 4 - 2017 - Police Misconduct Resulting in Arrest: Weighing the Options
For the Defense - Volume 2, Issue 4 - 2017 - 23
For the Defense - Volume 2, Issue 4 - 2017 - 24
For the Defense - Volume 2, Issue 4 - 2017 - 25
For the Defense - Volume 2, Issue 4 - 2017 - 26
For the Defense - Volume 2, Issue 4 - 2017 - 27
For the Defense - Volume 2, Issue 4 - 2017 - 28
For the Defense - Volume 2, Issue 4 - 2017 - Dying with Dignity: Compassionate Release in Pennsylvania
For the Defense - Volume 2, Issue 4 - 2017 - 30
For the Defense - Volume 2, Issue 4 - 2017 - 31
For the Defense - Volume 2, Issue 4 - 2017 - 32
For the Defense - Volume 2, Issue 4 - 2017 - 33
For the Defense - Volume 2, Issue 4 - 2017 - 34
For the Defense - Volume 2, Issue 4 - 2017 - Amicus Matters
For the Defense - Volume 2, Issue 4 - 2017 - 36
For the Defense - Volume 2, Issue 4 - 2017 - 37
For the Defense - Volume 2, Issue 4 - 2017 - 38
For the Defense - Volume 2, Issue 4 - 2017 - 39
For the Defense - Volume 2, Issue 4 - 2017 - Attorney Discipline
For the Defense - Volume 2, Issue 4 - 2017 - 41
For the Defense - Volume 2, Issue 4 - 2017 - 42
For the Defense - Volume 2, Issue 4 - 2017 - 43
For the Defense - Volume 2, Issue 4 - 2017 - Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 45
For the Defense - Volume 2, Issue 4 - 2017 - 46
For the Defense - Volume 2, Issue 4 - 2017 - 47
For the Defense - Volume 2, Issue 4 - 2017 - 48
For the Defense - Volume 2, Issue 4 - 2017 - 49
For the Defense - Volume 2, Issue 4 - 2017 - 50
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue2_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue1_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
https://www.nxtbookmedia.com