Monday, December 5, 2011

No police liability in neighborly dispute

It's a fact of life these days for civil rights lawyers that false arrest claims are hard to win. In this case, a neighbor called the police on plaintiff for doing something wrong. In fact, plaintiff was doing something else wrong. The fact that plaintiff was doing anything wrong at all means he cannot sue for false arrest.

The case is Pacicca v. Stead, a summary order decided on November 14. It looks like Pacicca and Stead were neighbors who hated each other. Stead called the police on Pacicca when he saw Pacicca damaging the grass on his property. The police acted on that complaint. Pacicca said there was no probable cause because, in fact, the property belonged to the City of White Plains, not Stead. So it's not an arrest for damage to private property but an arrest for criminal tampering. The Court of Appeals says that "a reasonable officer could believe that a person repeatedly moving rocks from city property gives rise to probable cause to arrest and prosecute that person for criminal tampering." The Second Circuit (Jacobs, Sack and Raggi) does not say this in the opinion but the law has developed to the point that the police may arrest you so long as you were committing any crime at all, even if they are mistaken about the initial reason for the arrest.

The case did go to trial on the malicious prosecution claim. Pacicca challenges the jury charge, which says that you cannot sue the police if the prosecutor exercised independent judgment and played an active role in initiating the criminal prosecution. The charge also said that if the officer provides the prosecutor with false information about the charge, then the officer may be sued after all. This was the correct charge, the Court of Appeals says. That's because the prosecutor testified that he consulted with Stead and independently decided to prosecute Pacicca. So that even if the officers gave the prosecutor false information, the prosecutor's independent actions get them off the hook.

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