New York Injury Law Blog

What, exactly, is “police brutality”?  When can you bring a lawsuit for “police brutality”?

It is often the case that when a person is arrested police officers use varying amounts of physical force to restrain the person arrested.  Guidelines issued to virtually all police allow different amounts of force under different situations.  Generally speaking, an arrest should be accomplished without harm, if possible, to the person arrested.  If, however, there is a “reasonable” belief that the person to be arrested is about to harm the police officer making or assisting in the arrest, or harm some bystander, or may even cause serious injury to himself, then the officer or officers can use an “appropriate” amount of force to avoid or mitigate such an outcome.

Any force used in excess of that amount of force deemed “reasonable” under the particular circumstances of a situation is called “excessive force”.  “Excessive Force” can be the basis of a lawsuit.

It is very important to realize that a person may have a valid lawsuit for “Excessive Force” even though the arrest was perfectly legal.  The issue of whether a “false arrest” was involved is a separate issue entirely!  The issue of whether there was “excessive force” used by a police officer can be considered whether or not the arrest itself is later determined to be legal.  Likewise, even if excessive force was used, that does not make an otherwise legal arrest illegal.

And who decides whether the force used in an arrest was reasonable or not, and therefore “excessive” or not?  Ultimately it is the “finder of fact” – either judge or jury, depending on the circumstances.   Often, with the availability of witnesses, or nowadays, videos, or just through the severity of the injury sustained by the person arrested, the answer as to “reasonableness” becomes clear.

This is certainly an area that requires an attorney with extensive “Police Misconduct” experience since the line between “reasonable” and “excessive” force can be a very fine distinction.

“Wrongful Death” is the term used to describe the death of a person through a negligent act by another person.   It is different from terms you may have heard that are used in criminal law such as murder or manslaughter.   “Wrongful Death” does not involve criminal law–it is a term used in “civil law”–though a person responsible for a wrongful death may also, but not necessarily, be criminally responsible.   A negligent person — a person who causes the death of another through a careless or reckless act, may be responsible to pay money damages to the relatives or family of that deceased individual whether or not that person may also be criminally responsible.

For information particular to New York, please see our wrongful death law page.

Posted by New York Injury Lawyer Steve Orlow

Arrest After the Search of a Vehicle
False Arrest and Probable Cause

Arizona  v.  Gant
U.S. Supreme Court–April 21, 2009

On April 21, 2009. the United States Supreme Court changed the rules which determine if there was “probable cause” sufficient to create a legal, as opposed to a “false”, arrest.

For all those drivers, or other vehicle occupants,  that are stopped in  vehicles for a traffic infraction, the rule for the past 28 years has allowed a police officer to search the car involved.   If the officer found evidence of a totally unrelated crime, such as an illegal drug or unlicensed weapon, then an arrest based on that evidence in the car would be legal.

That rule has now been tightened with Arizona vs Gant.

Under the new rules in Arizona vs Gant, a vehicle search will only be permitted under two conditions: if the person being arrested can reach into the car to grab a weapon or tamper with evidence the police offer reasonably believes to be in the car or, the police officer believes there is evidence in the car that is directly relevant to the crime for which the occupant was arrested .  Just arresting an occupant of a vehicle, by itself, is no longer grounds to permit a police search of a vehicle.

If, for example, a marijuana cigarette is found when the police search a vehicle after having stopped the vehicle because of an illegal turn, an arrest  based on that marijuana cigarette would no longer be deemed to be based on “probable cause” and the arrest based on the marijuana cigarette would not be legal.

It is, of course,more important than ever to discuss possibilities of  a “false arrest” with competent legal counsel.

When is an Arrest “FALSE”?

The most common mistake made by clients  who have been arrested when they have, in fact, done nothing wrong, is to assume that if the case is dismissed by a judge at some point, then that is enough to give them grounds for a “false arrest” lawsuit.   This, unfortunately, is not necessarily true.

The reason is quite simple:  The evidence legally required to make a police officer’s  arrest “legal”, and therefore not “false”,   is less than the evidence necessary to convict a person of a crime in court.

The legal standard to judge the legality of an arrest is whether the officer had “probable cause” to believe a crime was committed.   The legal standard to generate a conviction is whether, taking all the evidence presented, there is a conclusion “beyond a reasonable doubt” that the person arrested committed the crime.   “Reasonable Doubt” requires a much higher level of proof than does “Probable Cause”.   Therefore, while the prosecutor may not be able to meet the higher standard of “Beyond Reasonable Doubt”   in court, the police officer may have met the lower standard of “Probable  Cause” in making the arrest.   If the lower standard was met by the police officer in making the arrest, then there is no “FALSE” arrest.

It is of the utmost importance that you do not try to decide for yourself whether “probable cause” existed in deciding whether there was a “FALSE” arrest. Seek the assistance of a competent attorney well versed in matters involving “Police Misconduct” and discuss the matter fully with that attorney.

Law firms which restrict their practice to matters involving victims of personal injury,  usually limit their fee arrangement with their clients to a ‘CONTINGENT FEE” .

What, exactly, is a “CONTINGENT FEE”?

It seems hard to argue against the position that a “CONTINGENT FEE” is simply the fairest, most equitable arrangement that any client could hope for.   It basically says to you, the client, that the ONLY way you will owe your attorneys any fee is if your attorney is successful in obtaining money for you to compensate you for your injury, whether through settlement or after a trial.   In the  event the firm is unable to obtain money to compensate you then, in that event, you do not owe your attorney any attorney’s fee whatsoever!   What could be fairer from a client’s point of view?

Furthermore, the amount of fee the attorney is entitled to is directly related to the amount of money your attorney recovers on your behalf.   The greater the amount of recovery, the greater the fee your attorney receives.  As a general rule, the fee an attorney receives amounts to one-third of the amount recovered, after first deducting the expenses paid out in pursuing the case on your behalf.  (There are some exceptions and the attorney will explain any differences and give you a written “retainer agreement” setting out  the fee arrangement in detail).

For anyone that has either experienced, or knows someone that had to hire an attorney and experienced, being charged for every minute of every phone conversation with that attorney, the “CONTINGENT FEE” arrangement can be a refreshing breath of fresh air.  How comforting to know that any question, at any time, can be answered with just a phone call and there are no extra charges to have what may be a very important–or even not so important–matter dealt with quickly.

Be certain to ask the attorney what happens in the event there is NO recovery and the attorney has incurred expenses on your behalf.  This may be handled somewhat differently by different attorneys.

Steve Orlow received his law degree from Cornell Law School in 1968. Prior to forming his practice in 1981, Steve was an Assistant District Attorney in Kings County, New York and then Counsel to the county executive of Queens County, New York.

Steven was elected to the City Council in 1980 to the then existing position of “Council Member-At-Large” representing the almost two million people of Queens County in the City Council. During the latter year of his Council membership, Mr. Orlow established his law practice and, soon after establishing the practice, left the City Council to concentrate on his private practice.

Steve is a civil rights and personal injury attorney in New York.

Welcome! This blog is provided by Orlow, Orlow & Orlow of New York. We are a father and sons law firm who provide legal representation for personal injury, workers’ compensation, construction accidents, sexual abuse and civil rights issues including police brutality. It is our hope to keep you updated on New York’s legal arena.